Exhibit 4.2
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NORSKE XXXX CANADA LIMITED, as Issuer,
THE GUARANTORS PARTY HERETO, as Guarantors,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
----------------------------
Indenture
Dated as of March 23, 2004
----------------------------
US$250,000,000
7-3/8% Senior Notes Due March 1, 2014
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NORSKE XXXX CANADA LIMITED
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March 23, 2004
Trust Indenture Indenture
Act Section Section
----------------------------------- ------------
Section 310(a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.10
Section 311(a) 6.11
(b) 6.11
Section 312(a) 7.01, 7.02
(b) 7.02, 1.18
(c) 7.02, 1.18
(b) 7.03
(c) 7.03
(d) 7.03
313(a) 6.06
313(b)(2) 6.06
313(c) 6.06
313(d) 6.06
ss. 314(a) 2.02
(a)(4) Not applicable
(b) Not Applicable
(c)(1) 2.02
(c)(2) 2.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 10.2
Section 315(a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(d)(1) 6.01
(e) 5.14
ss. 316(a) 1.01
(a)(l)(A) 5.02, 5.12
(a)(l)(B) 5.13
(a)(2) Not Applicable
(b) 5.16
Section 317(a)(1) 5.04
(a)(2) 5.05
(b) 4.03, 4.04
ss. 318(a) 1.07
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TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY.......................................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions......................................................................1
SECTION 1.02 Compliance Certificates and Opinions............................................31
SECTION 1.03 Form of Documents Delivered to Trustee..........................................32
SECTION 1.04 Acts of Holders; Record Date....................................................32
SECTION 1.05 Notices.........................................................................34
SECTION 1.06 Notice to Holders; Waiver.......................................................35
SECTION 1.07 Conflict with Trust Indenture Act...............................................36
SECTION 1.08 Effect of Headings and Table of Contents........................................36
SECTION 1.09 Successors and Assigns..........................................................36
SECTION 1.10 Separability Clause.............................................................36
SECTION 1.11 Benefits of Indenture...........................................................36
SECTION 1.12 No Personal Liability of Directors, Officers, Employees and Stockholders........36
SECTION 1.13 Governing Law...................................................................37
SECTION 1.14 Business Days; Legal Holidays...................................................37
SECTION 1.15 Consent to Service; Jurisdiction................................................37
SECTION 1.16 Judgment Currency...............................................................38
SECTION 1.17 Currency Equivalent.............................................................40
SECTION 1.18 Communications by Holders with Other Holders....................................40
SECTION 1.19 No Adverse Interpretation of Other Agreements...................................40
ii
ARTICLE II
SECURITY FORMS
Page
SECTION 2.01 Forms Generally and Amount of Notes.............................................40
SECTION 2.02 Security Registrar and Paying Agent.............................................41
SECTION 2.03 Paying Agent To Hold Money in Trust.............................................41
SECTION 2.04 Form of Security................................................................41
SECTION 2.05 Book-Entry Provisions for Global Notes..........................................58
ARTICLE III
THE SECURITIES
SECTION 3.01 Title and Terms.................................................................59
SECTION 3.02 Denominations...................................................................60
SECTION 3.03 Execution, Authentication, Delivery and Dating..................................60
SECTION 3.04 Temporary Securities............................................................62
SECTION 3.05 Defaulted Interest..............................................................62
SECTION 3.06 Deposit of Moneys...............................................................63
SECTION 3.07 Registration, Registration of Transfer and Exchange Generally;
Restrictions on Transfer and Exchange; Securities Act Legends.......................63
SECTION 3.08 Mutilated, Destroyed, Lost and Stolen Securities................................68
SECTION 3.09 Outstanding Notes...............................................................69
SECTION 3.10 Computation of Interest.........................................................69
SECTION 3.11 Payment of Interest; Interest Rights Preserved..................................70
SECTION 3.12 Persons Deemed Owners...........................................................71
SECTION 3.13 Cancellation....................................................................71
SECTION 3.14 CUSIP or ISIN Numbers...........................................................71
SECTION 3.15 Treasury Notes..................................................................71
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ARTICLE IV
SATISFACTION AND DISCHARGE
Page
SECTION 4.01 Satisfaction and Discharge of Indenture.........................................72
SECTION 4.02 Application of Trust Money......................................................73
SECTION 4.03 Moneys Held by Paying Agent.....................................................73
SECTION 4.04 Moneys Held by Trustee..........................................................73
ARTICLE V
REMEDIES
SECTION 5.01 Events of Default...............................................................74
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment..............................76
SECTION 5.03 Other Remedies..................................................................77
SECTION5.04 Collection of Indebtedness and Suits for Enforcement by Trustee..................77
SECTION 5.05 Trustee May File Proofs of Claim................................................78
SECTION 5.06 Trustee May Enforce Claims Without Possession of Securities.....................78
SECTION 5.07 Application of Money Collected..................................................78
SECTION 5.08 Limitation on Suits.............................................................79
SECTION 5.09 Restoration of Rights and Remedies..............................................79
SECTION 5.10 Rights and Remedies Cumulative..................................................80
SECTION 5.11 Delay or Omission Not Waiver....................................................80
SECTION 5.12 Control by Holders..............................................................80
SECTION 5.13 Waiver of Past Defaults and Events of Default...................................80
SECTION 5.14 Undertaking for Costs...........................................................80
SECTION 5.15 Waiver of Stay, Extension or Usury Laws.........................................81
SECTION 5.16 Rights of Holders To Receive Payment............................................81
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Page
SECTION 5.17 Collection Suit by Trustee......................................................81
ARTICLE VI
THE TRUSTEE
SECTION 6.01 Duties of Trustee...............................................................81
SECTION 6.02 Rights of Trustee...............................................................83
SECTION 6.03 Individual Rights of Trustee....................................................84
SECTION 6.04 Trustee's Disclaimer............................................................84
SECTION 6.05 Notice of Defaults..............................................................84
SECTION 6.06 Reports by Trustee to Holders...................................................84
SECTION 6.07 Compensation and Indemnity......................................................85
SECTION 6.08 Replacement of Trustee..........................................................86
SECTION 6.09 Successor Trustee by Consolidation, Merger, Etc.................................87
SECTION 6.10 Corporate Trustee Required; Eligibility.........................................87
SECTION 6.11 Preferential Collection of Claims Against Company...............................87
SECTION 6.12 Paying Agents...................................................................87
SECTION 6.13 Disqualification: Conflicting Interests.........................................88
SECTION 6.14 Appointment of Authenticating Agent.............................................88
ARTICLE VII
HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders.......................89
SECTION 7.02 Preservation of Information; Communications to Holders..........................89
SECTION 7.03 Reports by Trustee..............................................................90
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ARTICLE VIII
AMALGAMATIONS,MERGERS, CONSOLIDATIONS
AND CERTAIN SALES AND PURCHASES OF ASSETS
Page
SECTION 8.01 The Company May Consolidate, Etc. Only on Certain Terms.........................90
SECTION 8.02 Successor Person Substituted....................................................91
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders......................................................92
SECTION 9.02 With Consent of Holders.........................................................93
SECTION 9.03 Compliance with Trust Indenture Act.............................................94
SECTION 9.04 Revocation and Effect of Consents...............................................94
SECTION 9.05 Notation on or Exchange of Notes................................................95
SECTION 9.06 Trustee To Sign Amendments, Etc.................................................95
SECTION 9.07 Effect of Supplemental Indentures...............................................95
SECTION 9.08 Reference in Securities to Supplemental Indentures..............................95
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Notes...............................................................95
SECTION 10.02 Reports to Holders.............................................................96
SECTION 10.03 [Intentionally Omitted.].......................................................96
SECTION 10.04 Compliance Certificate.........................................................96
SECTION 10.05 Taxes..........................................................................97
SECTION 10.06 Limitation on Additional Debt..................................................97
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Page
SECTION 10.07 Limitation on Restricted Payments..............................................97
SECTION 10.08 Limitation on Liens...........................................................100
SECTION 10.09 Limitation on Transactions with Affiliates....................................100
SECTION 10.10 Limitation on Asset Sales.....................................................102
SECTION 10.11 Limitation on Capital Stock of Restricted Subsidiaries........................104
SECTION 10.12 Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries........................................................... 104
SECTION 10.13 Limitation on Subsidiaries....................................................105
SECTION 10.14 Legal Existence...............................................................106
SECTION 10.15 Change of Control Offer.......................................................106
SECTION 10.16 Payment of Additional Amounts.................................................108
SECTION 10.17 Limitation on Applicability of Certain Covenants if the Notes Are Rated
Investment Grade...................................................................109
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 Election to Redeem; Notices to Trustee........................................109
SECTION 11.02 Selection by Trustee of Notes To Be Redeemed..................................110
SECTION 11.03 Notice of Redemption..........................................................110
SECTION 11.04 Effect of Notice of Redemption................................................111
SECTION 11.05 Deposit of Redemption Price...................................................111
SECTION 11.06 Notes Redeemed in Part........................................................111
SECTION 11.07 Optional Redemption...........................................................112
SECTION 11.08 Tax Redemption................................................................112
SECTION 11.09 Purchase of Notes.............................................................113
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ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
Page
SECTION 12.01 Company's Option to Effect Defeasance or Covenant Defeasance..................113
SECTION 12.02 Defeasance and Discharge......................................................113
SECTION 12.03 Covenant Defeasance...........................................................113
SECTION 12.04 Conditions to Defeasance or Covenant Defeasance...............................114
SECTION 12.05 Deposited Money and U.S. Government Securities to be Held in Trust: Other
Miscellaneous Provisions...........................................................116
SECTION 12.06 Reinstatement.................................................................116
ARTICLE XIII
GUARANTEE OF NOTES
SECTION 13.01 Guarantee.....................................................................117
SECTION 13.02 Execution and Delivery of Guarantee...........................................118
SECTION 13.03 Limitation of Guarantee.......................................................118
SECTION 13.04 Additional Guarantors.........................................................119
SECTION 13.05 Release of Guarantor..........................................................119
SECTION 13.06 Waiver of Subrogation.........................................................119
ANNEXES
Annex A Form of Regulation S Certificate A-1
Annex B Form of Restricted Securities Certificate B-1
Annex C Form of Guarantee C-1
viii
THIS INDENTURE, dated as of March 23, 2004, among Norske Xxxx
Canada Limited, a corporation incorporated under the laws of Canada, as issuer
(herein called the "Company"), the Guarantors (as defined herein) and Xxxxx
Fargo Bank, National Association, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 7-3/8% Senior Notes Due March 1, 2014 of substantially the tenor and amount
hereinafter set forth (the "Notes"), and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture. The Securities may
consist of either or both Notes or Exchange Securities each as defined herein.
The Notes and the Exchange Securities shall rank PARI PASSU with one another and
will vote as one series of Securities under this Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
Upon the effectiveness of an effective registration statement
under the Securities Act, this Indenture will be subject to, and shall be
governed by, applicable provisions of the Trust Indenture Act.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS.
(a) For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined herein include the plural as well as the singular and
where the use of a word implies a gender, the word shall apply to all
genders;
(2) all other terms used herein which are defined in the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), either directly or
by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP (whether or not such is
indicated herein), and, except as otherwise herein expressly provided,
the term "generally accepted accounting
1
principles" or "GAAP" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in Canada as consistently applied by the Company at
the date of such computation;
(4) unless the context otherwise requires, any reference to an "Article" or
a "Section", or to an "Annex" or a "Schedule", refers to an Article or
Section of, or to an Annex or a Schedule attached to, this Indenture,
as the case may be;
(5) unless the context otherwise requires, any reference to a statute, rule
or regulation refers to the same (including any successor statute, rule
or regulation thereto) as it may be amended from time to time;
(6) a term has the meaning assigned to it herein, whether defined expressly
or by reference;
(7) "or" is not exclusive;
(8) "U.S. Dollars", "United States Dollars" and "US$" each refer to United
States Dollars, or such other money of the United States that at the
time of payment is legal tender for payment of public and private
debts; and "$" and "Cdn$" each refer to Canadian Dollars, or such other
money of Canada that at the time of payment is legal tender for payment
of public and private debts;
(9) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect
to any Note, such mention shall be deemed to include mention of the
payment of Additional Interest to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof;
(10) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated
basis in accordance with GAAP; and
(11) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
(b) Certain terms are defined as follows:
"ACCOUNTS RECEIVABLE" of a Person means all of the accounts
receivable of such Person whether now existing or existing in the future.
"ACQUIRED DEBT" means Debt of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or
is merged or amalgamated with or into or consolidated with the Company or a
Restricted Subsidiary or which is assumed in connection with the acquisition of
assets from such Person and, in each case, not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary or such merger, amalgamation, consolidation or
acquisition.
2
"ADDITIONAL AMOUNTS" has the meaning specified in Section
10.16.
"ADDITIONAL INTEREST" means additional interest on the Notes
which the Company and any Guarantors, jointly and severally, agree to pay to the
Holders pursuant to Section 2(e) of the Registration Rights Agreement.
"AFFILIATE" means, with respect to any specific Person, any
other Person (including, without limitation, such Person's issue, siblings and
spouse) that directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with such specified Person;
PROVIDED that, for purposes of this Indenture, the term "Affiliate" shall not
include Norske Skogindustrier ASA or its Affiliates. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), 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, for purposes of Section 10.09 hereof, beneficial
ownership of at least 10% of the voting securities of a Person, either directly
or indirectly, shall be deemed to be control.
"AGENT" means any Security Registrar, Paying Agent or agent
for service of process.
"AGENT MEMBERS" has the meaning specified in Section
3.07(b)(2)(i).
"APPLICABLE PROCEDURES" has the meaning specified in Section
3.07(b)(2)(i).
"ASSET ACQUISITION" means (i) an Investment by the Company or
any Restricted Subsidiary in any other Person pursuant to which such Person
becomes a Restricted Subsidiary, or shall be merged or amalgamated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person (other than a
Restricted Subsidiary) which constitute all or substantially all of the assets
of such Person or comprise any division or line of business of such Person or
any other properties or assets of such Person other than in the ordinary course
of business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, assignment, transfer, lease (other than operating leases entered
into in the ordinary course of business) or other disposition (including
pursuant to any Sale and Lease-Back Transaction), other than to the Company or
any of its Restricted Subsidiaries, in any single transaction or series of
related transactions of:
(1) any Capital Stock of any Restricted Subsidiary or
(2) any other property or assets (including any interest
therein) of the Company or of any Restricted Subsidiary outside of the
ordinary course of business;
PROVIDED that Asset Sales shall not include:
3
(a) a transaction or series of related transactions
for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $5,000,000 (PROVIDED that
the Company or such Restricted Subsidiary received
consideration equal to the Fair Market Value of any such
property or assets so sold, conveyed, assigned, transferred,
leased or otherwise disposed of),
(b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the
Company as permitted under Section 8.01 hereof,
(c) sales, transfers or other dispositions of
property or equipment that has become worn out, obsolete or
damaged or otherwise unsuitable for use in connection with the
business of the Company or any Restricted Subsidiary, as the
case may be,
(d) the sale of inventory in the ordinary course of
business,
(e) sales, transfers or other dispositions of assets
of the Company or its Restricted Subsidiaries, PROVIDED that
the aggregate Fair Market Value of all such assets shall not
exceed $5,000,000,
(f) the sale of Accounts Receivable without recourse
to the Company or any Restricted Subsidiary at no more than
customary discounts in the market for such sales of
Receivables of similar quality,
(g) any Restricted Payment made in compliance with
Section 10.07 hereof,
(h) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other
claims of any kind,
(i) the granting of Liens not prohibited by this
Indenture, and
(j) the liquidation of Cash Equivalents in the
ordinary course of business.
"ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
(1) cash or Cash Equivalents received by the Company or any
Restricted Subsidiary from such Asset Sale, after:
(a) provision for all income or other taxes measured
by or resulting from such Asset Sale,
(b) payment of all brokerage commissions,
underwriting and other fees and expenses, including, without
limitation, legal, accounting and appraisal fees, related to
such Asset Sale,
4
(c) provision for minority interest holders in any
Restricted Subsidiary as a result of such Asset Sale, and
(d) deduction of appropriate amounts to be provided
by the Company or a Restricted Subsidiary as a reserve, in
accordance with GAAP, against any liabilities associated with
the assets sold or disposed of in such Asset Sale and retained
by the Company or a Restricted Subsidiary after such Asset
Sale, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in
such Asset Sale, and
(2) promissory notes and other non-cash consideration received
by the Company or any Restricted Subsidiary from such Asset Sale or
other disposition upon the liquidation or conversion of such notes or
non-cash consideration into cash.
"ATTRIBUTABLE DEBT" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the present value
(discounted according to GAAP at the cost of indebtedness implied in the Sale
and Lease-Back Transaction) of the total obligations of the lessee for minimum
rental payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"AUTHENTICATING AGENT" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
"AVAILABLE ASSET SALE PROCEEDS" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not
been applied in accordance with clause (3)(A) or (3)(B) of Section 10.10(a), and
that have not yet been the basis for an Excess Proceeds Offer in accordance with
Section 10.10(a) hereof.
"BANKRUPTCY LAW" means Title 11, U.S. Code, the Bankruptcy and
Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or
any similar United States or Canadian federal, state or provincial law for the
relief of debtors.
"BOARD OF DIRECTORS" means as to any Person, the board of
directors of such Person and any duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution certified by
Officers' Certificate to have been duly adopted by the Board of Directors of the
Company or a Guarantor, as appropriate, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL CONTRIBUTION" means any cash contribution to the
equity of the Company from a direct or indirect parent of the Company or from
another shareholder for which no consideration other than the issuance of
Capital Stock (other than Disqualified Capital Stock) is given.
5
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated and
whether or not voting) of corporate stock, shares, partnership interests or any
other participation, right or other interest in the nature of an equity interest
in such Person including, without limitation, Common Stock and Preferred Stock
of such Person, or any option, warrant or other security convertible into any of
the foregoing.
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to any
Person, Debt represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Debt shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"CASH EQUIVALENTS" means
(1) Canadian or U.S. dollars;
(2) marketable direct obligations issued by, or
unconditionally guaranteed by, the federal government of the United
States of America or Canada, respectively, or issued by any agency
thereof and backed by the full faith and credit of the federal
government of the United States of America or Canada, respectively, in
each case maturing within one year from the date of acquisition
thereof;
(3) marketable direct obligations issued by any state of the
United States of America or any province of Canada or any political
subdivision of any such state or province, as the case may be, or any
public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having one of
the two highest ratings obtainable from either S&P or Xxxxx'x; PROVIDED
that, in the event that any such obligation is not rated by S&P or
Xxxxx'x, such obligation shall have the highest rating from DBRS;
(4) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least R-1 (low) from DBRS or A-2 from S&P or P-2 from
Xxxxx'x;
(5) overnight deposits, certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition
thereof issued by any 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 or any U.S. or Canadian branch
of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than US$250,000,000;
(6) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (2) of
this definition entered into with any bank meeting the qualifications
specified in clause (5) of this definition; and
(7) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (6) of this definition.
6
A "CHANGE OF CONTROL" of the Company shall be deemed to have
occurred at such time as:
(1) any Person or group of related Persons for purposes of
Section 13(d) of the Exchange Act ("Group") becomes the beneficial
owner (as defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act), directly or indirectly, of 50% or
more of the total voting power of the Common Stock of the Company,
(2) there shall be consummated any consolidation or merger or
amalgamation of the Company in which the Company is not the continuing
or surviving corporation or pursuant to which the Common Stock of the
Company would be converted into cash, securities or other property,
other than a merger or consolidation or amalgamation of the Company in
which the holders of the Common Stock of the Company outstanding
immediately prior to the consolidation or merger or amalgamation hold,
directly or indirectly, at least a majority of the Common Stock of the
surviving corporation immediately after such consolidation or merger or
amalgamation, or
(3) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of
both a Change of Control and a Rating Decline.
"CLEARSTREAM" has the meaning specified in Section 2.05.
"COMMISSION" means the U.S. Securities and Exchange
Commission.
"COMMODITY AGREEMENT" means any commodity forward contract,
commodity futures contract, commodity swap, commodity option or other similar
agreement or arrangement entered into by the Company or any Restricted
Subsidiary.
"COMMON STOCK" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by any one of the Chairman of the
Board of Directors, Chief Executive Officer, President, any Vice President,
Chief Financial Officer, Controller or Treasurer of the Company, and attested to
by the Corporate Secretary or any Assistant Secretary of the Company.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, at any date
of determination, with respect to any Person, the ratio of EBITDA of such Person
to Consolidated Fixed Charges of such Person for the Four-Quarter Period.
7
In addition to and without limitation of the foregoing, for
purposes of this definition, "EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis to:
(1) the incurrence or repayment of any Debt of such Person or
any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation;
(2) any incurrence or repayment of other Debt (and the
application of the proceeds thereof), occurring on or after the first
day of the Four-Quarter Period and on or prior to the date of
determination, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first
day of such Four-Quarter Period; and
(3) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or a Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result
of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Debt and also including any increase or decrease, as the
case may be, in EBITDA (including any pro forma cost reductions
calculated on a basis consistent with Regulation S-X under the
Securities Act) directly attributable to the assets which are the
subject of the Asset Sale or Asset Acquisition during the Four-Quarter
Period) occurring on or after the first day of the Four-Quarter Period
and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability
for any such Acquired Debt) occurred on the first day of such
Four-Quarter Period.
"CONSOLIDATED FIXED CHARGES" means, with respect to any
Person, for any period, the sum, without duplication, of (i) Consolidated
Interest Expense, plus (ii) the amount of all dividend payments (to any Person
other than the Company or a Restricted Subsidiary) on any series of Disqualified
Capital Stock of such Person (other than dividends paid in Capital Stock (other
than Disqualified Capital Stock)) paid, accrued or scheduled to be paid or
accrued during such period, plus (iii) the amount of all cash dividend payments
(to any Person other than the Company or a Restricted Subsidiary) on any series
of Preferred Stock (other than Disqualified Capital Stock) of such Person paid
during such period, in each case, on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
Person, for any period, the sum, without duplication, of:
(1) the aggregate amount of interest charges (excluding (a)
fees and expenses incurred in connection with any Debt incurred
pursuant to Section 10.06, including, but not limited to, any Permitted
Debt, any Debt outstanding on the Issue Date and the Notes, (b) the
amortization of any deferred gains or losses in respect of Debt
denominated in foreign currency as a result of fluctuations in exchange
rates and (c) any premium paid, or fees and expenses incurred, in
connection with the redemption, repurchase or retirement of any Debt of
that Person or its Restricted Subsidiaries prior to
8
the stated maturity thereof), whether expensed or capitalized, incurred
or accrued by that Person and its Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP for such period
(including non-cash interest payments); plus,
(2) to the extent not included in clause (1) of this
definition, an amount equal to the sum of:
(A) imputed interest included in Capitalized Lease
Obligations;
(B) the net costs associated with Interest Rate
Agreements, Currency Agreements and other hedging
obligations;
(C) the interest portion of any deferred payment
obligations;
(D) amortization of discount or premium on Debt, if any;
(E) all capitalized interest and all accrued interest;
(F) all other non-cash interest expense;
(G) all interest incurred or paid under any guarantee of
Debt (including a guarantee of principal, interest or
any combination thereof) of any Person; and
(H) the amount of all payments charged to shareholders
equity on any "compound financial instrument" (as
described under GAAP) paid, accrued or scheduled to
be paid or accrued during such period.
For purposes of calculating Consolidated Interest Expense on a pro
forma basis:
(1) interest on Debt bearing a floating rate of interest shall
be calculated using the interest rate in effect at the time of
determination, taking into account on a pro forma basis any Interest
Rate Agreement applicable to such Debt if such Interest Rate Agreement
has a remaining term at the date of determination of at least 12
months; and
(2) if Debt was incurred under a revolving credit facility,
the interest expense on such Debt shall be calculated based upon the
average daily balance of such Debt during the applicable period.
"CONSOLIDATED LEVERAGE RATIO" means, at any date of
determination, with respect to any Person, the ratio of the total Debt of such
Person at such date of determination to the EBITDA of such Person for the
Four-Quarter Period.
In addition to and without limitation of the foregoing, for
purposes of this definition, "EBITDA" and "total Debt" shall be calculated after
giving effect on a pro forma basis to:
9
(1) the incurrence or repayment of any Debt of such Person or
any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation;
(2) any incurrence or repayment of other Debt (and the
application of the proceeds thereof), occurring on or after the first
day of the Four-Quarter Period and on or prior to the date of
determination, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first
day of such Four-Quarter Period; and
(3) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or a Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result
of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Debt and also including any increase or decrease, as the
case may be, in EBITDA (including any pro forma cost reductions
calculated on a basis consistent with Regulation S-X under the
Securities Act) directly attributable to the assets which are the
subject of the Asset Sale or Asset Acquisition during the Four-Quarter
Period) occurring on or after the first day of the Four-Quarter Period
and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability
for any such Acquired Debt) occurred on the first day of such
Four-Quarter Period.
"CONSOLIDATED NET INCOME" means, with respect to any 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, to the extent included in calculating Net
Income of such Person,
(1) the Net Income of any other Person that is not a
Restricted Subsidiary of the Person in question, shall be excluded,
except to the extent of the amount of cash dividends or distributions
actually received by such Person or a Restricted Subsidiary of such
Person,
(2) the Net Income (but not loss) of any Restricted Subsidiary
of the Person in question that is subject to any restriction or
limitation on the payment of dividends or the making of other
distributions (other than pursuant to the Notes or this Indenture or
pursuant to a restriction or limitation of the type described in clause
(c)(2) of Section 10.12) shall be excluded to the extent of such
restriction or limitation,
(3) (a) the Net Income of any Person acquired in a "pooling of
interests" transaction for any period prior to the date of such
acquisition shall be excluded and (b) any net after-tax gain (but not
loss) resulting from an Asset Sale by the Person in question or any of
its Restricted Subsidiaries other than in the ordinary course of
business shall be excluded,
(4) after-tax items classified as extraordinary or unusual
gains or losses and any foreign exchange gains and losses shall be
excluded,
10
(5) any restoration to income or any contingency reserve of an
extraordinary, non-recurring or unusual nature shall be excluded, and
(6) in the case of a successor to such Person by consolidation
or merger or amalgamation or as a transferee of such Person's assets,
any earnings of the successor corporation prior to such consolidation,
merger or amalgamation or transfer of assets shall be excluded if and
to the extent such corporation was not subject to this Indenture.
"CONTINUING DIRECTOR" means, with respect to the Company, as
of any date of determination, any member of the Board of Directors of the
Company (i) who was a member of the Board of Directors of the Company on the
Issue Date or (ii) whose appointment or election was approved by the affirmative
vote of a majority of the Continuing Directors who were members of the Board of
Directors of the Company at the time of such director's nomination or election.
"CORPORATE TRUST OFFICE" means the office of the Trustee or
its affiliate at which at any particular time its corporate trust business may
be administered and any additional office it may designate in writing to the
Company. At the date of this Indenture, the Corporate Trust Office of the
Trustee is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention:
Corporate Trust Services.
"CORPORATION" means a corporation, association, company,
joint-stock company, limited liability company and, where the context requires,
includes a partnership or business trust.
"CREDIT FACILITIES" means, collectively, any credit
facilities, letter of credit or other borrowing or lending arrangements of the
Company and/or the Guarantors together with the related documents thereto
(including, without limitation, any loan agreements, note purchase agreements,
indentures, notes, guarantee agreements, collateral documents, mortgages,
instruments and security documents executed in connection therewith), in each
case as any such agreements or arrangements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, in each case, including, without limitation, any credit facility,
letter of credit, agreement, indenture, notes, other documents or instruments or
other arrangement extending the maturity of, refinancing, replacing or otherwise
restructuring (including adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Debt under such
agreements or arrangements, together with any successor or replacement
agreements or other arrangements, and whether by or with the same or any other
agent, lender or group of lenders or other institutions providing credit.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"DBRS" means Dominion Bond Rating Service Limited and its
successors.
"DEBT" means (without duplication, including, without
limitation, duplication arising or existing because a Person and one or more of
its subsidiaries are or will become either
11
directly or indirectly liable for the same Debt whether by virtue of guarantees,
or joint, or joint and several liability in respect of such Debt or otherwise),
with respect to any Person, any indebtedness at any time outstanding, secured or
unsecured, contingent or otherwise, which is for borrowed money (whether or not
the recourse of the lender is to the whole of the assets of that Person or only
to a portion of the assets of that Person), or evidenced by bonds, notes,
debentures or similar instruments or representing the balance deferred and
unpaid of the purchase price of any property (excluding, without limitation, any
balances that constitute accounts payable or trade payables, and other accrued
liabilities arising in the ordinary course of business) if and to the extent any
of the foregoing indebtedness would appear as a liability upon a balance sheet
of that Person prepared in accordance with GAAP, and will also include, to the
extent not otherwise included:
(1) Capitalized Lease Obligations of that Person;
(2) obligations secured by a Lien (other than obligations
under Interest Rate Agreements, Currency Agreements or Commodity
Agreements) to which any property or assets owned or held by that
Person are subject, whether or not the obligation or obligations
secured thereby will have been assumed by a third party, PROVIDED that,
for the purposes of determining the amount of Debt described in this
clause, if recourse with respect to that Debt is limited to such
property or assets, the amount of that Debt will be deemed to be the
Fair Market Value of such property or assets;
(3) guarantees of items of other Persons which would be
included within this definition for that other Person (whether or not
such items would appear upon the balance sheet of the guarantor);
(4) obligations of that Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction;
(5) all Disqualified Capital Stock issued by that Person with
the amount of Debt represented by that Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price (for the purposes
hereof, "maximum fixed repurchase price" of any Disqualified Capital
Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of that Disqualified Capital Stock as if
that Disqualified Capital Stock were repurchased on any date on which
Debt shall be required to be determined pursuant to this Indenture and
if that price is based upon, or measured by, the fair market value of
that Disqualified Capital Stock, that price shall be the Fair Market
Value of that Disqualified Capital Stock);
(6) obligations of that Person under any Currency Agreement or
any Interest Rate Agreement applicable to any of the foregoing (if and
to the extent such Currency Agreement or Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of that
Person prepared in accordance with GAAP);
12
(7) obligations of that Person under any Commodity Agreement
(if and to the extent such Commodity Agreement obligations would appear
as a liability upon a balance sheet of that Person prepared in
accordance with GAAP); and
(8) Attributable Debt.
The amount of Debt of any Person at any date will be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations (other than contingent
obligations under Interest Rate Agreements, Currency Agreements and Commodity
Agreements, which shall be valued as set forth above), the maximum liability
upon the occurrence of the contingency giving rise to the obligation; PROVIDED
that:
(1) the amount outstanding at any time of any Debt issued with
original issue discount is the accreted value of that Debt at that time
as determined in conformity with GAAP; and
(2) Debt will not include any liability for federal,
provincial, state, local or other taxes.
Notwithstanding any other provision of the foregoing
definition, any trade payable, deferred credit or accrued liability arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be Debt of the Company or any of its
Restricted Subsidiaries for purposes of this definition. Furthermore, guarantees
of (or obligations with respect to letters of credit supporting) Debt otherwise
included in the determination of that amount shall also not be included.
"DEFAULT" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section
3.11(b).
"DESIGNATION" means the designation of any Subsidiary of the
Company as an Unrestricted Subsidiary.
"DESIGNATION AMOUNT" shall have the meaning set forth in the
definition of "Restricted Payment."
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of a
Person or a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof (except, in each case, in
accordance with a change of control provision, which provision has substantially
the same effect as Section 10.15 hereof), in whole or in part, or is
exchangeable into Debt on or prior to the final maturity date of the Notes.
"DTC" means The Depository Trust Company, its nominee or
successor.
13
"EBITDA" means, with respect to any Person and its Restricted
Subsidiaries, for any period, an amount equal to
(1) the sum, without duplication, of:
(a) Consolidated Net Income for such period, MINUS
any net income (or PLUS any net loss) attributable to
discontinued operations (including, without limitation,
operations disposed of during such period whether or not such
operations were classified as discontinued), PLUS
(b) the provision for taxes for such period based on
income or profits to the extent such income or profits were
included in computing Consolidated Net Income (MINUS any
provision for taxes utilized in computing net loss under
clause (1)(a) of this definition to the extent such provision
reduced net loss), PLUS
(c) Consolidated Interest Expense for such period,
PLUS
(d) depreciation for such period on a consolidated
basis, to the extent reducing Consolidated Net Income, PLUS
(e) amortization of goodwill, deferred charges and
other intangibles for such period on a consolidated basis, to
the extent reducing Consolidated Net Income, PLUS
(f) any other non-cash items reducing Consolidated
Net Income for such period, MINUS
(2) all non-cash items increasing Consolidated Net Income for
such period, determined on a consolidated basis in accordance with
GAAP.
"EUROCLEAR" has the meaning specified in Section 2.05.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" refers to the U.S. Securities Exchange Act of
1934 as it may be amended, any successor act thereto and the rules and
regulations of the Commission promulgated thereunder.
"EXCHANGE SECURITIES" has the meaning provided in the
Registration Rights Agreement.
"EXCLUDED HOLDER" has the meaning specified in Section
10.16(a).
"EXPIRATION DATE" has the meaning specified in Section
1.04(g).
"FAIR MARKET VALUE" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to
14
complete the transaction. Fair Market Value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and, in the case of
determination involving assets or property in excess of $5,000,000 shall be
evidenced by a Board Resolution.
"FOUR-QUARTER PERIOD" means at any date of determination the
four most recent consecutive fiscal quarters for which consolidated financial
statements are available ending on or prior to the date of such determination.
"GLOBAL NOTE" and "GLOBAL SECURITY" mean collectively a
Restricted Global Security and Regulation S Global Security.
"GUARANTEE" means a guarantee of the Notes by a Guarantor
issued pursuant to the terms of this Indenture.
"GUARANTORS" means all of the Restricted Subsidiaries of the
Company that hereafter become Guarantors pursuant to this Indenture.
"HOLDER" means a person in whose name a Security is registered
in the Security Register.
"INCUR" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or other obligation on the balance sheet of such Person (and
"incurrence", "incurred", "incurrable" and "incurring" shall have meanings
correlative to the foregoing); PROVIDED, that a change in GAAP that results in
an obligation of such Person that exists at such time becoming Debt shall not be
deemed an incurrence of such Debt.
"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the Annexes attached to this instrument.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking
firm or accounting firm of national reputation in the United States of America
or Canada (i) which does not, and whose directors, officers, employees and
Affiliates do not, have a direct or indirect financial interest in the Company
or any of its Affiliates, and (ii) which, in the judgment of the Board of
Directors of the Company, is otherwise independent and qualified to perform the
task for which it is to be engaged.
"INITIAL PURCHASERS" means Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Banc of America Securities LLC, CIBC World Markets Corp.,
Scotia Capital (USA) Inc., RBC Capital Markets Corporation, TD Securities (USA),
Inc., Xxxxxx Xxxxxxx Corp., HSBC Securities (USA) Inc. and NBF Securities (USA)
Corp.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) promulgated under the Securities Act.
15
"INTEREST PAYMENT DATE" means each semiannual interest payment
date on March 1 and September 1 of each year, commencing September 1, 2004.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate protection agreement, interest rate futures agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate forward agreement or other similar agreement or
arrangement.
"INVENTORY" of a Person means all inventory of such Person,
including (i) all raw materials, work in process, parts, components, assemblies,
supplies and materials used or consumed by such Person's business, (ii) all
goods, wares and merchandise, finished or unfinished, held for sale or lease and
(iii) all goods returned or repossessed by such Person.
"INVESTMENT GRADE" means (i) BBB- or above, in the case of S&P
(or its equivalent under any successor Rating Categories of S&P), or Baa3 or
above, in the case of Moody's (or its equivalent under any successor Rating
Categories of Moody's), or (ii) the equivalent in respect of the Rating
Categories of any Rating Agencies substituted for S&P or Moody's.
"INVESTMENTS" means (without duplication), with respect to any
Person, directly or indirectly, any advance (or other extension of credit),
account receivable (other than an account receivable arising in the ordinary
course of business of such Person), loan or capital contribution to (by means of
transfers of cash or other Property to others, payments for Property or services
for the account or use of others or otherwise), any guarantee of any obligations
or Debt of any other Person, the purchase of any Capital Stock, bonds, notes,
debentures, partnership or joint venture interests or other securities of, the
acquisition, by purchase or otherwise, of all or substantially all of the
business or assets or stock or other evidence of beneficial ownership of, or
interest in any Person or the making of any investment in any Person.
Investments shall exclude (i) extensions of trade credit to customers and
advances in respect of commissions and travel and similar expenses to officers
and employees, in each case made in the ordinary course of business and (ii) the
repurchase of securities of any Person by such Person. For the purposes of
Section 10.07 hereof, the amount of any Investment shall be the original cost of
such Investment plus the cost of all additional Investments by the Company or
any of its Restricted Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends or distributions in connection
with such Investment or any other amounts received in respect of such
Investment; PROVIDED that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. In determining the amount of any
Investment involving the transfer of any property or assets other than cash,
such property or assets shall be valued at its or their Fair Market Value at the
time of such transfer, as determined in good faith by the Board of Directors of
the Person making such transfer.
"ISSUE DATE" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
16
"LIEN" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
priority or other security agreement of any kind or nature whatsoever on or with
respect to such property or assets (including, without limitation, any
Capitalized Lease Obligations, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"MATERIAL SUBSIDIARY" means, at any date of determination,
(1) any Restricted Subsidiary that, together with its
Subsidiaries that constitute Restricted Subsidiaries:
(a) for the most recent fiscal year of the Company
accounted for more than 5.0% of the consolidated revenues of
the Company and the Restricted Subsidiaries, or
(b) as of the end of such fiscal year, owned more
than 5.0% of the consolidated assets of the Company and the
Restricted Subsidiaries,
all as set forth on the consolidated financial statements of the
Company and the Restricted Subsidiaries for such year prepared in
conformity with GAAP, and
(2) any Restricted Subsidiary which, when aggregated with all
other Restricted Subsidiaries that are not otherwise Material
Subsidiaries and as to which any event described in clause (8) of
Section 5.01(a) hereof has occurred, would constitute a Material
Subsidiary under clause (1) of this definition.
"MATURITY DATE" means March 1, 2014.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its
successors.
"NET INCOME" means, with respect to any Person, for any
period, the net income (loss) of such Person determined in accordance with GAAP
and in accordance with clause (6) of the definition of Consolidated Net Income.
"NON-U.S. PERSON" means a Person who is not a U.S. person, as
defined in Regulation S.
"NOTES" means the 7-3/8% Senior Notes due 2014 issued by the
Company pursuant to this Indenture.
"NOTICE OF DEFAULT" means a written notice of the kind
specified in Section 6.05.
"OFFICER" with respect to any Person (other than the Trustee),
means the Chairman of the Board of Directors, Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the Controller, the
Treasurer, the Corporate Secretary or the Secretary of such Person, or any other
officer of such Person designated by the Board of Directors of such Person and
set forth in an Officers' Certificate delivered to the Trustee.
17
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer, the Treasurer or the Corporate
Secretary, of such Person that shall comply with applicable provisions of this
Indenture.
"OPINION OF COUNSEL" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel, which
counsel is reasonably acceptable to the Trustee, including the matters required
by Section 1.02 hereof and delivered to the Trustee.
"OTHER SENIOR NOTES" means the 8-5/8% Senior Notes due 2011
issued by the Company.
"PACIFICA" means Pacifica Papers Inc., a Canadian company that
amalgamated with Norske Xxxx Canada Limited to form the Company on September 1,
2001.
"PACIFICA INCOME ADJUSTMENT AMOUNT" means the amount equal to
50% of the cumulative Consolidated Net Income of Pacifica for the period from
January 1, 1999 to September 1, 2001 (but not including any amount which is
included in determining Consolidated Net Income of the Company and its
successors) less the aggregate amount of any "Restricted Payments" (as such term
is defined in the indenture governing the Pacifica Notes, as such indenture was
in effect on the date the Pacifica Notes were originally issued, whether or not
any of such Pacifica Notes remain outstanding) made by Pacifica in that period
that would be required to be deducted in calculating the limitation on
"Restricted Payments" thereunder.
"PACIFICA NOTES" means the 10% Senior Notes due 2009 of
Pacifica, and assumed by the Company.
"PARI PASSU", when used with respect to the ranking of any
Debt of any Person in relation to other Debt of such Person, means that each
such Debt (a) either (i) is not subordinated in right of payment to any other
Debt of such Person or (ii) is subordinate in right of payment to the same Debt
of such Person as is the other and is so subordinate to the same extent and (b)
is not subordinate in right of payment to the other or to any Debt of such
Person as to which the other is not so subordinate.
"PAYING AGENT" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company, which initially shall be the Trustee.
"PERMITTED DEBT" means:
(1) Debt of the Company or a Guarantor arising under or in
connection with any Credit Facilities in an aggregate principal amount
at any time outstanding not to exceed the greater of:
(A) $725,000,000; and
(B) the sum of:
18
(i) 85.0% of the book value of Accounts
Receivable net of any allowance for doubtful accounts
of the Company and its Restricted Subsidiaries as of
the last fiscal quarter for which financial
statements are prepared, plus
(ii) 60.0% of the book value of Inventory at
the lower of cost or net realizable value net of any
allowance for obsolescence of the Company and its
Restricted Subsidiaries as of the last fiscal quarter
for which financial statements are prepared, plus
(iii) $375,000,000;
(2) Debt under the Notes and any Guarantees;
(3) Debt of the Company owed to and held by any Guarantor
which is unsecured and subordinated in right of payment to the payment
and performance of the Company's obligations under this Indenture and
the Notes and Debt of any Restricted Subsidiary owed to and held by the
Company or another Guarantor; PROVIDED that:
(A) any sale or other disposition of any Debt of the
Company or any Restricted Subsidiary referred to in this
clause (3) to a Person other than the Company or a Guarantor,
(B) any sale or other disposition of Capital Stock of
any Guarantor which holds Debt of the Company or another
Restricted Subsidiary such that such Guarantor ceases to be a
Guarantor of the Company, and
(C) the Designation of a Guarantor that holds Debt of
the Company or any other Restricted Subsidiary as an
Unrestricted Subsidiary,
shall be deemed to be an incurrence of Debt not constituting Permitted
Debt by the issuer of that Debt;
(4) Purchase Money Debt and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business in an
aggregate principal amount outstanding not to exceed, together with all
other Debt outstanding under this clause (4), at the time of any such
incurrence and after giving pro forma effect thereto, 7.5% of the
consolidated tangible assets of the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter for which
consolidated financial statements are available ending on or prior to
the date of determination;
(5) Debt under Interest Rate Agreements entered into in the
ordinary course of business of the Company or any Restricted Subsidiary
and not for speculative purposes; PROVIDED that the notional principal
amount of such Interest Rate Agreements, at the time of the incurrence
thereof, does not exceed the principal amount of the Debt to which such
Interest Rate Agreements relate;
19
(6) Debt under Currency Agreements entered into in the
ordinary course of business of the Company or any Restricted
Subsidiaries and not for speculative purposes; PROVIDED that in the
case of Currency Agreements which relate to Debt, such Currency
Agreements do not increase the principal amount of Debt of the Company
and its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities or compensation payable thereunder;
(7) Debt of the Company or any Restricted Subsidiary in
respect of reimbursement obligations relating to undrawn standby
letters of credit issued for the account of the Company or such
Restricted Subsidiary, as the case may be, in connection with workers'
compensation claims, self insurance or other similar reimbursement type
obligations;
(8) Debt of the Company or any Restricted Subsidiary in
respect of bid, performance, surety and appeal bonds provided in the
ordinary course of business;
(9) additional Debt of the Company or the Guarantors not to
exceed $100,000,000 in aggregate principal amount at any one time
outstanding which may, but need not be, incurred under the Credit
Facilities;
(10) Refinancing Debt;
(11) Debt of the Company or any of its Restricted Subsidiaries
in respect of accommodation guarantees for the benefit of trade
creditors of any such person, trade letters of credit, standby letters
of credit, performance bonds, bankers' acceptances and surety bonds, in
each case, incurred in the ordinary course of business in an aggregate
principal amount not in excess of $5,000,000 at any one time
outstanding;
(12) Debt outstanding on the Issue Date except for
indebtedness incurred pursuant to clause (1) or (2) of this definition;
(13) Debt under Commodity Agreements entered into in the
ordinary course of business and not for speculative purposes; and
(14) any Debt incurred by the Company or any Restricted
Subsidiary to the extent (i) (A) all of the net proceeds of such Debt
are used to fully or partially pay the consideration for any Asset
Acquisition or (B) such Debt constitutes Acquired Debt and (ii) after
giving pro forma effect to such incurrence and the related Asset
Acquisition, (1) no Default or Event of Default will have occurred and
be continuing or result therefrom and (2) the Company's Consolidated
Leverage Ratio is equal to or lower than the Company's Consolidated
Leverage Ratio immediately prior to giving effect to such incurrence
and related Asset Acquisition.
"PERMITTED INVESTMENTS" means Investments made on or after the
Issue Date consisting of:
20
(1) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
(2) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person, if as a result of that Investment
(A) that Person becomes a Restricted Subsidiary
of the Company, or
(B) that 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 thereof;
(3) Investments in Cash Equivalents;
(4) reasonable and customary loans and advances made to
employees not to exceed $10,000,000 in the aggregate at any one time
outstanding;
(5) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any Capital Stock, bonds, notes,
debentures or other securities that are issued by a third party to the
Company or Restricted Subsidiary solely as partial consideration for
the consummation of an Asset Sale that is permitted under Section 10.10
of this Indenture;
(6) Investments (including, but not limited to, Investments in
co-generation facilities) in Unrestricted Subsidiaries or in any
corporation, partnership, joint venture or other entity (including, but
not limited to, any entity engaged in the business of constructing
and/or operating co-generation or similar facilities) in an amount not
to exceed, together with the amount of all other Investments
outstanding under this clause (6), at the time of such Investment and
after giving pro forma effect thereto, 7.5% of the consolidated
tangible assets of the Company and its Restricted Subsidiaries as of
the end of the most recent fiscal quarter for which consolidated
financial statements are available ending on or prior to the date of
determination (with the amount of each Investment being measured at the
time made and without giving effect to subsequent changes in value);
(7) any acquisition of assets in exchange for the Capital
Stock (other than Disqualified Capital Stock) of the Company;
(8) Investments in securities of trade creditors or customers
received in settlement of obligations that arose in the ordinary course
of business pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors
or customers;
(9) Investments in Commodity Agreements, Interest Rate
Agreements and Currency Agreements entered into in the ordinary course
of business and not for speculative purposes; and
(10) other Investments in any Person in an amount, together
with the amount of all other Investments outstanding under this clause
(10), not to exceed at the time of such
21
Investment, the greater of (A) $25,000,000 and (B) 2.0% of the
consolidated tangible assets of the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter for which
consolidated financial statements are available ending on or prior to
the date of determination (with the amount of each Investment being
measured at the time made and without giving effect to subsequent
changes in value).
"PERMITTED LIENS" means,
(1) Liens on Property or assets of, or any Capital Stock of,
any corporation existing at the time such assets are acquired by the
Company or any of its Restricted Subsidiaries, whether by merger,
amalgamation, consolidation, purchase of assets or otherwise; PROVIDED
(a) that such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such assets being acquired by the Company
or its Restricted Subsidiaries and (b) that any such Lien does not
extend to or cover any Property, Capital Stock or Debt other than the
Property, Capital Stock or Debt being acquired,
(2) Liens securing Refinancing Debt; PROVIDED that any such
Lien does not extend to or cover any Property, Capital Stock or Debt
other than the Property, Capital Stock or Debt securing the Debt so
refunded, refinanced or extended,
(3) Liens in favor of the Company or any Guarantor,
(4) Liens to secure Purchase Money Debt that is otherwise
permitted to be incurred under this Indenture; PROVIDED that (a) any
such Lien is created solely for the purpose of securing Debt
representing, or incurred to finance, refinance or refund, the cost
(including sales and excise taxes, installation and delivery charges
and other direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction) of the Property so
acquired, (b) the principal amount of the Debt secured by such Lien
does not exceed 100% of such costs and expenses, and (c) such Lien does
not extend to or cover any Property other than such item of Property
and any improvements on such item,
(5) statutory liens or landlords', carriers', warehousemen's,
unemployment insurance, surety or appeal bonds, mechanics', suppliers',
materialmen's, repairmen's or other like Liens imposed by law arising
in the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings,
(6) Liens existing on the Issue Date,
(7) Liens securing only the Notes or the Guarantees,
(8) Liens for taxes, assessments or governmental charges not
yet due or that are being contested in good faith by appropriate
proceedings; PROVIDED that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made
therefor,
22
(9) Liens securing Capitalized Lease Obligations permitted to
be incurred under clause (4) of the definition of "Permitted Debt";
PROVIDED that such Lien does not extend to any Property other than that
subject to the underlying lease,
(10) Liens securing Debt permitted to be incurred under clause
(1) of the definition of "Permitted Debt,"
(11) Liens securing obligations under Interest Rate
Agreements, Currency Agreements and Commodity Agreements, in each case
permitted to be incurred under this Indenture,
(12) Liens created or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, government contracts,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business,
(13) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods,
(14) other Liens securing obligations incurred in the ordinary
course of business, which obligations do not exceed $3,000,000 in the
aggregate at any one time outstanding,
(15) Liens arising pursuant to Sale and Lease-Back
Transactions entered into in compliance with this Indenture,
(16) Liens securing Debt permitted to be incurred under clause
(9) or (11) of the definition of "Permitted Debt,"
(17) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $7,500,000 at any one time outstanding
and that (a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary,
(18) the Lien of any judgment rendered which is being
contested diligently and in good faith by appropriate proceedings by
the Company or any of its Restricted Subsidiaries and which does not
have a material adverse effect on the ability of the Company and its
Restricted Subsidiaries to operate the business or operations of the
Company,
(19) reservations, limitations, provisos and conditions
expressed in any original grants from a government (including any
agency or political subdivision thereof) which do not materially
adversely impair the use of the subject property by the Company or a
Restricted Subsidiary,
23
(20) servitudes, licenses, easements, rights-of-way and rights
in the nature of easements (including, without in any way limiting the
generality of the foregoing, servitudes, licenses, easements,
rights-of-way and rights in the nature of easements for sidewalks,
public ways, sewers, drains, gas, steam and water mains or electric
light and power, or telephone and telegraph conduits, poles, wires and
cable) which do not in the aggregate materially adversely impair the
use of the subject property by the Company or a Restricted Subsidiary
or in respect to which the Company or any of its Restricted
Subsidiaries has made satisfactory arrangement for relocation so that
such use will not in the aggregate be materially and adversely
impaired,
(21) zoning and building by-laws and ordinances, municipal
by-laws and regulations, and restrictive covenants, which do not
materially adversely interfere with the use of the subject property by
the Company or a Restricted Subsidiary,
(22) with respect to personal property only, Liens arising
pursuant to registration under the Personal Property Act (British
Columbia) and similar legislation in other provinces or jurisdictions
exclusively relating to property and assets subject to equipment leases
which are not Capitalized Lease Obligations,
(23) Liens with respect to any property of (i) any
Unrestricted Subsidiaries, corporations, partnerships, joint ventures
or other entities specified in clause (6) of the "Permitted
Investments" definition or (ii) any other Unrestricted Subsidiaries, if
pursuant to any laws or regulations such property would be deemed to be
that of the Company or any of its Restricted Subsidiaries, and
(24) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clause (1), (2), (4), (6)
or (9) of this definition; PROVIDED that the principal amount secured
by any such extension, renewal or replacement shall not be increased
and such lien shall not extend to any other Property of the Company or
its Subsidiaries other than such item of Property originally covered by
such Lien or by improvement thereon or additions or accessions thereto.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government, including any agency or
political subdivision thereof.
"PHYSICAL NOTES" means certificated Notes in registered form
in substantially the form set forth in Section 2.04 Form of Security.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and for the purposes of this definition, any
Security authenticated and delivered under SECTION 3.08 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"PREFERRED STOCK" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or
24
liquidation proceeds of such Person over the holders of other Capital Stock
issued by such Person.
"PRIVATE EXCHANGE" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE EXCHANGE SECURITIES" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means a legend in the form set
forth in Section 2.04 of this Indenture.
"PROPERTY" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"PUBLIC EQUITY OFFERING" means a public offering of shares of
Common Stock (however designated and whether voting or non-voting) and any and
all rights, warrants, receipts or options to acquire such Common Stock of the
Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act or pursuant to a prospectus filed with the
appropriate securities regulatory authorities in any province or territory of
Canada. For the purposes of this definition of "Public Equity Offering," any
offering of securities specified in this definition that (i) does not satisfy
the criteria required for a Public Equity Offering because such securities are
not sold pursuant to a registration statement filed with the Commission in
accordance with the Securities Act or pursuant to a prospectus filed with the
appropriate securities regulatory authorities in a province or territory of
Canada and (ii) becomes eligible for resale to the general public in any
province or territory of Canada or the United States of America within 90 days
of the date on which such securities were initially sold, shall be deemed to be
a Public Equity Offering on and as of the date upon which such securities first
become eligible for such resale.
"PURCHASE MONEY DEBT" means any Debt incurred by a Person to
finance the cost (including the cost of acquisition, construction, lease,
installation or improvement) of an item of Property, the principal amount of
which Debt does not exceed the sum of (i) the lesser of (a) the Fair Market
Value of such property and (b) 100% of such cost and (ii) reasonable fees and
expenses of such Person incurred in connection therewith.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"RATING AGENCIES" means:
(1) S&P; and
(2) Xxxxx'x; and
(3) if S&P or Xxxxx'x or both will not make a rating of the
Notes publicly available, a nationally recognized United States
securities rating agency or agencies, as
25
the case may be, selected by the Company, which will be substituted for
S&P or Xxxxx'x or both, as the case may be.
"RATING CATEGORY" means:
(1) with respect to S&P, any of the following categories: BB,
B, CCC, CC, C and D (or equivalent successor categories);
(2) with respect to Xxxxx'x, any of the following categories:
Ba, B, Caa, Ca, C and D (or equivalent successor categories); and
(3) the equivalent of any such category of S&P or Xxxxx'x used
by another Rating Agency.
In determining whether the rating of the Notes has decreased
by one or more gradations, gradations within Rating Categories (+ and - for S&P;
1, 2 and 3 for Xxxxx'x; or the equivalent gradations for another Rating Agency)
will be taken into account (e.g., with respect to S&P a decline in rating from
BB+ to BB, as well as from BB- to B+, will constitute a decrease of one
gradation).
"RATING DATE" means the date which is 90 days prior to the
earlier of (1) a Change of Control and (2) public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control.
"RATING DECLINE" means the decrease (as compared with the
Rating Date) by one or more gradations within Rating Categories as well as
between Rating Categories of the rating of the Notes by a Rating Agency on, or
within 120 days after, the earlier of the date of public notice of the
occurrence of a Change of Control or of the intention by the Company to effect a
Change of Control (which period will be extended for so long as the rating of
the Notes is under publicly announced consideration for possible downgrade by
any of the Rating Agencies).
"RECEIVABLES" means chattel paper, instruments, documents,
contract rights or intangibles evidencing or relating to the right to payment of
money.
"REDEMPTION DATE" when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REFINANCING DEBT" means Debt that replaces, refunds, renews,
refinances or extends any Debt of the Company or a Restricted Subsidiary
permitted to be incurred by the Company or its Restricted Subsidiaries pursuant
to Section 10.06 hereof (other than pursuant to clauses (1), (4), (5), (6), (7),
(8) (9) and (13) of the definition of "Permitted Debt"), but only to the extent
that (i) the Refinancing Debt is subordinated to the Notes to at least the same
extent as the Debt being replaced, refunded, renewed, refinanced or extended, if
at all, (ii) the Refinancing Debt is scheduled to mature either (a) no earlier
than the Debt being replaced, refunded, renewed, refinanced or extended, or (b)
after the Maturity Date, (iii) the portion, if any, of the
26
Refinancing Debt that is scheduled to mature on or prior to the Maturity Date
has a weighted average life to maturity at the time such Refinancing Debt is
incurred that is equal to or greater than the weighted average life to maturity
of the portion of the Debt being replaced, refunded, renewed, refinanced or
extended that is scheduled to mature on or prior to the Maturity Date, and (iv)
such Refinancing Debt is in an aggregate principal amount that is equal to or
less than the sum of (a) the aggregate principal amount then outstanding under
the Debt being replaced, refunded, renewed, refinanced or extended, (b) the
amount of accrued and unpaid interest, if any, and premiums owed, if any, not in
excess of preexisting prepayment provisions on such Debt being replaced,
refunded, renewed, refinanced or extended and (c) the amount of customary fees,
expenses and costs related to the incurrence of such Refinancing Debt.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated March 23, 2004 among the Company, the Guarantors and the Initial
Purchasers, as amended from time to time and, with respect to any Notes issued
pursuant to the second sentence of Section 3.01(a), any other registration
rights agreement in connection with the issuance of such Notes.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a certificate substantially
in the form set forth in Annex A.
"REGULATION S GLOBAL SECURITY" has the meaning specified in
Section 2.05(b).
"REGULATION S SECURITIES" means all Securities required
pursuant to Section 3.07(c) to bear a Private Placement Legend. Such term
includes the Regulation S Global Security.
"REPLACEMENT ASSETS" means (i) properties or assets (other
than cash or Cash Equivalents or any Capital Stock or other security) that will
be used or useful in the business of the Company or its Restricted Subsidiaries,
or in businesses reasonably similar to or ancillary to the business of the
Company or its Restricted Subsidiaries or (ii) Capital Stock of any Person that
will become on the date of acquisition thereof a Guarantor as a result of such
acquisition.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust department
of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture 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 GLOBAL SECURITY" has the meaning specified in
Section 2.05.
"RESTRICTED PAYMENTS" means any of the following:
(1) the declaration or payment of any dividend or any other
distribution or payment on Capital Stock of the Company or any
Restricted Subsidiary or any payment made to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company
or any Restricted Subsidiary (other than (x) the amount of any such
dividends
27
or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) of the Company, and (y) in the case of
Restricted Subsidiaries, dividends or distributions payable to the
Company or to a Restricted Subsidiary),
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company or any of its
Restricted Subsidiaries (other than Capital Stock owned by the Company
or a Restricted Subsidiary),
(3) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement
for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Debt of the Company or any
Guarantor which is subordinated in right of payment to the Notes or
such Guarantor's Guarantee, as the case may be (other than any such
Debt acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity in each case due
within one year of the date of acquisition),
(4) the making of any Investment other than a Permitted
Investment,
(5) any Designation; PROVIDED that the Designation of a
Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed
to include the Designation of all of the Subsidiaries of such
Subsidiary, and
(6) the forgiveness of any Debt of an Affiliate of the Company
owed to the Company or a Restricted Subsidiary.
In determining the amount of any Restricted Payment,
cash distributed or invested shall be valued at the face amount thereof
and Property other than cash shall be valued at its Fair Market Value,
except that, in determining the amount of any Restricted Payment made
under clause (5) of this definition, the amount of such Restricted
Payment (the "Designation Amount") shall be equal to the greater of (1)
the book value, or (2) the Fair Market Value, of the Company's
proportionate direct or indirect interest in such Subsidiary on such
date.
"RESTRICTED SECURITIES" means a restricted security within the
meaning of Rule 144 and all Securities required pursuant to Section 3.07(c) to
bear a Private Placement Legend. Such term includes the Restricted Global
Security; PROVIDED, that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any Note is
a Restricted Security.
"RESTRICTED SECURITIES CERTIFICATE" means a certificate
substantially in the form set forth in Annex B.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"RULE 144" means Rule 144 under the Securities Act.
"S&P" means Standard & Poor's Ratings Group and its
successors.
28
"RULE 144A" means Rule 144A under the Securities Act.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any real or tangible personal property, which property has been or is to be
sold or transferred by the Company or such Restricted Subsidiary to such Person
in contemplation of such leasing.
"SECURITIES ACT" means the U.S. Securities Act of 1933 and
(unless the context otherwise requires) includes the rules and regulations of
the Commission promulgated thereunder.
"SECURITIES ACT LEGEND" means the Private Placement Legend.
"SECURITY" and "SECURITIES" means the Notes, the Exchange
Securities and the Private Exchange Securities.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 3.07(a).
"SUBSIDIARY" of any specified Person means any corporation,
partnership, joint venture, limited liability company, association or other
business entity, whether now existing or hereafter organized or acquired:
(1) in the case of a corporation, of which more than 50% of
the total voting power of the Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by that first-named
Person or any of its Subsidiaries; or
(2) in the case of a partnership, joint venture, limited
liability company, association or other business entity, with respect
to which that first-named Person or any of its Subsidiaries has the
power to direct or cause the direction of the management and policies
of that entity by contract or otherwise or if in accordance with GAAP
such entity is consolidated with the first-named Person for financial
statement purposes;
PROVIDED that, for greater certainty, the term "Subsidiary" when used
in relation to the Company or any of its Subsidiaries shall not include
Xxxxxx River Energy Inc. or Xxxxxx River Energy Limited Partnership.
"SUCCESSOR SECURITY" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and for the purposes of this definition,
any Security authenticated and delivered under Section 3.08 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"TAXES" means any present or future tax, duty, levy, impost,
assessment or other government charge (including penalties, interest and any
other liabilities related thereto) imposed or levied by or on behalf of a Taxing
Authority.
29
"TAXING AUTHORITY" means the federal government of Canada or
any government of any political subdivision, province or territory of Canada or
any authority or agency therein or thereof having power to tax.
"TAXING JURISDICTION" means Canada or any political
subdivision, province or territory therein.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of an
Unrestricted Subsidiary and (ii) any Subsidiary of the Company which is
classified on or after the Issue Date as an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of the Company; PROVIDED that a
Subsidiary may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with Section 10.07 hereof; PROVIDED FURTHER that
the Board of Directors of the Company may not designate any Subsidiary of the
Company to be an Unrestricted Subsidiary if, after such designation, such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, any Restricted Subsidiary which is not a Subsidiary of the Subsidiary to be
so designated. The Trustee shall be given prompt notice by the Company of each
resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"U.S. DEPOSITARY" means The Depository Trust Company until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean each
successor U.S. Depositary.
"U.S. GOVERNMENT SECURITIES" means securities that are direct
obligations of the United States of America, direct obligations of the Federal
Home Loan Mortgage Corporation, direct obligations of the Federal National
Mortgage Association, securities which the timely payment of whose principal and
interest is unconditionally guaranteed by the full faith and credit of the
United States of America, trust receipts or other evidence of indebtedness of a
direct claim upon the instrument described above and money market funds that
invest solely in such securities.
"U.S. PERSON" is defined in this Indenture to mean (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States, (iii) any estate
of which an executor or administrator is a U.S. Person (other than an estate
governed by foreign law and of which at least one executor or administrator is a
non-U.S. Person who has sole or shared investment discretion with respect to its
assets), (iv) any trust of which any trustee is a U.S. Person (other than a
trust of which at least one trustee is a non-U.S. Person who has the sole or
shared investment discretion with respect to its assets and no beneficiary of
the trust (and no settler if the trust is revocable) is a U.S. Person, (v) any
agency or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the
30
United States (other than such an account held for the benefit or account of a
non-U.S. Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
Person principally for the purpose of investing in securities not registered
under the Securities Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(a) under the Securities Act
who are not natural persons, estates or trusts); PROVIDED, HOWEVER, that the
term "U.S. Person" does not include (a) a branch or agency of a U.S. Person that
is located and operating outside the United States for valid business purposes
as a locally regulated branch or agency engaged in the banking or insurance
business, (b) any employee benefit plan established and administered in
accordance with the law, customary practices and documentation of a foreign
country and (c) the international organizations set forth in Section 902(o)(7)
of Regulation S under the Securities Act and any other similar international
organizations, and their agencies, affiliates and pension plans.
"UNITED STATES" means the United States of America (including
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"VOTING STOCK" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or similar requirements of law) of which are owned, directly
or indirectly, by the Company or another Wholly Owned Restricted Subsidiary.
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or request by the Company or any Guarantor, as
the case may be, to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.04) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition;
31
(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 each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with (which, in the case of an Opinion
of Counsel, may be limited to reliance on an Officers' Certificate as
to matters of fact); and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Officer of the Company or any
Guarantor, may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer or Officers of the
Company or any Guarantor stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04 ACTS OF HOLDERS; RECORD DATE.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantors. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
32
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company and the Guarantors, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities (including the principal amount and
serial numbers of Securities held by any Person, and the date of holding the
same) shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Notes entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders of
Securities, PROVIDED that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If not set by the Company prior to the first solicitation of a Holder
made by any Person in respect of any such matter referred to in the foregoing
sentence, the record date for any such matter shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation. If any record date
is set pursuant to this paragraph, the Holders of Securities on such record
date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; PROVIDED that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite aggregate principal
amount of Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite aggregate principal amount of Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities in the manner set forth in
Section 1.06.
33
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Securities entitled to join in the giving or making
of (1) any Notice of Default, (2) any declaration of acceleration referred to in
Section 5.02, (3) any request to institute proceedings referred to in Section
5.08(b) or (4) any direction referred to in Section 5.12. If any record date is
set pursuant to this paragraph, the Holders of Notes on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite aggregate
principal amount of Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite aggregate principal amount of Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities in the
manner set forth in Section 1.06.
(g) With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other parties hereto
in writing, and to each Holder of Securities in the manner set forth in Section
1.06, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(h) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.05 NOTICES. Except for notice or communications to Holders,
any notice or communication shall be given in writing and delivered in person,
sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Norske Xxxx Canada Limited
16th Floor
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
34
Canada
Attention: Corporate Secretary
Fax Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Xxxxxx X. Xxxxxxxx
Fax Number: (000) 000-0000
and
Shearman & Sterling LLP
0000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax Number: (000) 000-0000
If to the Trustee:
Xxxxx Fargo Bank, National Association
Corporate Trust Services
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Fax Number: (000) 000-0000
Xxxxx Fargo Bank, National Association
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Fax Number: (000) 000-0000
SECTION 1.06 NOTICE TO HOLDERS; WAIVER.
(a) Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived
35
in writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
(b) In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07 CONFLICT WITH TRUST INDENTURE ACT. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this Indenture, the
Company, the Guarantors and the Trustee shall be deemed for all purposes hereof
to be subject to and governed by the Trust Indenture Act to the same extent as
would be the case if this Indenture were so qualified on the date hereof. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
are not to be considered a part of, and shall not affect the construction
hereof.
SECTION 1.09 SUCCESSORS AND ASSIGNS. All agreements in this Indenture
of the Company and any Guarantors shall bind their respective successors and
assigns. All agreements of the Trustee, any additional trustee, and any Paying
Agents in this Indenture shall bind their respective successors.
SECTION 1.10 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any Paying Agent, any Security Registrar and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS. No recourse for the payment of the principal of or
premium, if any, or interest, including Additional Interest, on any of the
Notes, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company or
any Guarantor in this Indenture or in any supplemental indenture, or in any of
the Notes, or because of the creation of any Debt represented thereby, shall be
had against any stockholder, officer, director or employee, as such, past,
present or future, of the Company or any Guarantor or of any successor
corporation or against the property or assets of any such
36
stockholder, officer, employee or director, either directly or through the
Company or any Guarantor, or any successor corporation thereof, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the Notes are solely obligations of the Company and the
Guarantors, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, any shareholder, officer, employee or director of the
Company or any Guarantor, or any successor corporation thereof, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or the Notes or
implied therefrom, and that any and all such personal liability of, and any and
all claims against every stockholder, officer, employee and director, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Notes. It is understood that
this limitation on recourse is made expressly for the benefit of any such
shareholder, employee, officer or director and may be enforced by any of them.
SECTION 1.13 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 1.14 BUSINESS DAYS; LEGAL HOLIDAYS.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a United States or Canadian
federally-recognized holiday or a day on which banking institutions are not
required to be open, or are authorized or obligated by law or executive order to
close, in the State of New York or the Province of British Columbia. 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 for the intervening period.
SECTION 1.15 CONSENT TO SERVICE; JURISDICTION
By the execution and delivery of this Indenture, the Company
and each Guarantor (i) acknowledges that it has, by separate written instrument,
designated and appointed CT Corporation System as its authorized agent upon
which process may be served in any suit, action or proceeding arising out of or
relating to the Securities or this Indenture that may be instituted in any
United States Federal or State court in the State of New York, Borough of
Manhattan, or brought under United States Federal or State securities laws or
brought by the Trustee (whether in its individual capacity or in its capacity as
Trustee hereunder), and acknowledges that CT Corporation System has accepted
such designation, (ii) submits to the jurisdiction of any such court in any such
suit, action or proceeding, and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to it (as set out in this
Section 1.15), shall be deemed in every respect effective service of process
upon it in any such suit or proceeding. The Company and each Guarantor further
agree to take any and all action, including the execution and filing of any and
all such documents and instruments as may be necessary to continue such
designation and appointment of CT Corporation System, in full force and effect
so long as this Indenture shall be in full force and effect; PROVIDED that the
Company may and shall (to the extent CT Corporation System ceases to be able to
be served on the basis contemplated
37
herein), by written notice to the Trustee, designate such additional or
alternative agent for service of process under this Section 1.15 that (i)
maintains an office located in the Borough of Manhattan, The City of New York in
the State of New York, (ii) is either (x) counsel for the Company or (y) a
corporate service company which acts as agent for service of process for other
Persons in the ordinary course of its business and (iii) agrees to act as agent
for service of process in accordance with this Section 1.15. Such notice shall
identify the name of such agent for process and the address of such agent for
process in the Borough of Manhattan, The City of New York, State of New York.
Upon the request of any Holder, the Trustee shall deliver such information to
such Holder. Notwithstanding the foregoing, there shall, at all times, be at
least one agent for service of process for the Company and any Guarantors, if
any, appointed and acting in accordance with this Section 1.15.
To the extent that the Company or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Company and such Guarantor hereby irrevocably waives such
immunity in respect of its obligations under this Indenture and the Securities,
to the extent permitted by law.
SECTION 1.16 JUDGMENT CURRENCY.
(a) The Company and each of the Guarantors, jointly and severally, each
agree to indemnify each Holder against any loss incurred by such party as a
result of any judgment or order being given or made for any amount due under
this Indenture and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than United States dollars and as a result of
any variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the spot rate of exchange in The City of New York at
which such party on the date of payment of such judgment or order is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by such party. The foregoing indemnity shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars.
(b) The Company covenants and agrees that the following provisions
shall apply to conversion of currency in the case of the Securities and this
Indenture in the event the Company is in default under the terms of this
Indenture:
(1) If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to
convert into a currency (the "judgment currency") an amount due in U.S.
Dollars, then the conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which the judgment is
given or the order of enforcement is made, as the case may be (unless a
court shall otherwise determine).
(2) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given
or an order of enforcement
38
is made, as the case may be (or such other date as a court shall
determine), and the date of receipt of the amount due, the Company will
pay such additional amount (or, as the case may be, be refunded such
lesser amount), if any, as may be necessary so that the amount paid in
the judgment currency when converted at the rate of exchange prevailing
on the date of receipt will produce the amount in U.S. Dollars
originally due.
(3) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Securities or this
Indenture, or any judgment or order rendered in respect thereof, shall
remain outstanding, the Company shall indemnify and hold the Holders
and the Trustees harmless against any deficiency arising or resulting
from any variation in rates of exchange between (1) the date as of
which the equivalent of the amount in U.S. Dollars due or contingently
due under the Securities and this Indenture (other than under this
Subsection (3)) is calculated for the purposes of such winding-up and
(2) the final date for the filing of proofs of claim in such
winding-up. For the purpose of this Subsection (3), the final date for
the filing of proofs of claim in the winding-up of the Company shall be
the date fixed by the liquidator or otherwise in accordance with the
relevant provisions of applicable law as being the latest practicable
date as at which liabilities of the Company may be ascertained for such
winding-up prior to payment by the liquidator or otherwise in respect
thereto.
(4) The obligations contained in Subsections (2) and (3) of
this Section 1.16 shall constitute separate and independent obligations
of the Company from its other obligations under the Securities and this
Indenture, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or
extension granted by any Holders or the Trustees or any of them from
time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of
claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under subsection (3) above) or
under any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual
loss shall be required by the Company or the liquidator or otherwise or
any of them which shall be liable for such deficiency. In the case of
subsection (3) above, the amount of such deficiency shall not be deemed
to be reduced by any variation in rates of exchange occurring between
the said final date and the date of any liquidating distribution.
(5) The term "rate(s) of exchange" shall mean the rate of
exchange quoted by The Royal Bank of Canada at its central foreign
exchange desk in its main branch in Vancouver, British Columbia at
12:00 noon (Vancouver time) for the purchases of U.S. Dollars with the
judgment currency other than U.S. Dollars referred to in subsections
(1) and (3) above and includes any premiums and costs of exchange
payable.
(c) The Trustee shall have no duty or liability with respect to
monitoring or enforcing this Section 1.16 and shall have no liability to the
Holders due to fluctuations in currency rates.
39
SECTION 1.17 CURRENCY EQUIVALENT. Except as provided in Section 1.16,
for purposes of the construction of the terms of this Indenture or of the
Securities, in the event that any amount, including any amounts owed by the
Company to the Trustee, is stated herein in the currency of one nation (the
"First Currency"), as of any date such amount shall also be deemed to represent
the amount in the currency of any other relevant nation (the "Other Currency")
which is required to purchase such amount in the First Currency at the rate of
exchange quoted by The Royal Bank of Canada at its central foreign exchange desk
in its main branch in Vancouver, British Columbia at 12:00 noon (Vancouver time)
on the date of determination.
SECTION 1.18 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. Holders may
communicate pursuant to Trust Indenture Act ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Guarantors, the Trustee, the Security Registrar and anyone else shall have the
protection of Trust Indenture Act ss. 312(c).
SECTION 1.19 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan, security or debt
agreement of the Company or any Subsidiary thereof. No such indenture, loan,
security or debt agreement may be used to interpret this Indenture.
ARTICLE II
SECURITY FORMS
SECTION 2.01 FORMS GENERALLY AND AMOUNT OF NOTES.
(a) The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the forms set forth in this Article
Two. The Notes may have notations, legends or endorsements required by law, rule
or usage to which the Company is subject. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the Private Placement Legend and
include the form of assignment set forth in this Article Two, Notes offered and
sold in offshore transactions in reliance on Regulation S ("Regulation S Notes")
shall bear the Private Placement Legend and include the form of assignment set
forth in this Article Two. Notes transferred pursuant to Section 3.07 ("Other
Notes") shall be represented by a Physical Note bearing the Private Placement
Legend. Each Note shall be dated the date of its authentication. The Notes shall
be issuable only in registered form without coupons in denominations of US$1,000
and any integral multiple of US$1,000.
(b) Upon the occurrence of the exchange offer in accordance with the
Registration Rights Agreement, the Exchange Securities or the Private Exchange
Securities issued by the Company shall be substantially in the form set forth in
this Article Two (but shall not contain paragraph 10 thereof).
(c) The terms and provisions contained in the Notes shall constitute,
and are expressly made, a part of this Indenture and, to the extent applicable,
the Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and agree to be
bound thereby. However, to the extent any
40
provision of the Notes conflicts with the provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
(d) The Notes may be presented for registration of transfer and
exchange at the offices of the Security Registrar.
SECTION 2.02 SECURITY REGISTRAR AND PAYING AGENT. (a) The Company shall
maintain an office or agency (which shall be located in the Borough of Manhattan
in The City of New York, State of New York) where Notes may be presented for
registration of transfer or for exchange (the "Security Registrar"), and an
office or agency where Notes may be presented for payment (the "Paying Agent")
and an office or agency where notices and demands to or upon the Company, if
any, in respect of the Notes and this Indenture may be served. The Securities
Registrar shall keep a register (the "Register") of the names and address of the
Holders and of the transfer and exchange of the Notes. The Company may have one
or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. The Company may change any Paying Agent or Security
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act as Paying Agent or Security Registrar.
(b) The Company shall enter into an appropriate agency agreement, which
shall incorporate applicable provisions of the Trust Indenture Act, with any
Agent that is not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the Company fails to
maintain a Security Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 6.07.
(c) The Company initially appoints the Trustee as Security Registrar,
Paying Agent and Agent for service of notices and demand (subject to Section
1.15 hereof) in connection with the Notes and this Indenture.
SECTION 2.03 PAYING AGENT TO HOLD MONEY IN TRUST. Each Paying Agent
shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium (if any) or
interest on the Notes (whether such money has been paid to it by the Company or
any other obligor on the Notes or any Guarantor), and the Company and the Paying
Agent shall notify the Trustee in writing of any default by the Company (or any
other obligor on the Notes or any Guarantor) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Company at any time may require the Paying
Agent to pay all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any Event of
Default specified in clause (1) or (2) of Section 5.01(a) hereof, upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
41
SECTION 2.04 FORM OF SECURITY
[FORM OF PRIVATE PLACEMENT LEGEND]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO NORSKE XXXX CANADA LIMITED OR ANY OF ITS SUBSIDIARIES, (B) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND, IF REQUESTED BY NORSKE XXXX CANADA LIMITED OR THE TRUSTEE, AN
OPINION OF COUNSEL ACCEPTABLE TO THEM THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (PROVIDED THAT SUCH NON-U.S.
PERSONS AGREE NOT TO RESELL OR OTHERWISE TRANSFER THE NOTE IN CANADA OR TO OR
FOR THE BENEFIT OF A CANADIAN RESIDENT, EXCEPT IN ACCORDANCE WITH APPLICABLE
CANADIAN SECURITIES LAWS), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES
ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTE, THE HOLDER MUST TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR NON-U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND NORSKE XXXX CANADA LIMITED SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
42
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
THIS NOTE HAS NOT BEEN THE SUBJECT OF ANY PROSPECTUS FILED UNDER THE SECURITIES
LAWS OF ANY CANADIAN PROVINCE OR TERRITORY. THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF REPRESENTS, IF IT IS A RESIDENT OF CANADA, THAT IT IS
PURCHASING THE NOTE IN A TRANSACTION WHICH IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS REQUIREMENTS OF APPLICABLE CANADIAN SECURITIES LAWS. THE SALE OF THE
NOTE TO IT QUALIFIES (BY REASON OF THE AMOUNT OF THE CONSIDERATION BEING PAID BY
THE PURCHASER OF THE SECURITIES OR BY REASON OF THE STATUS OF THE PURCHASER, AS
THE CASE MAY BE) FOR AN EXEMPTION FROM THE PROSPECTUS FILING AND DELIVERY
OBLIGATIONS UNDER APPLICABLE CANADIAN PROVINCIAL OR TERRITORIAL SECURITIES LAWS
(PROVIDED THAT APPLICABLE REGISTRATION REQUIREMENTS AND FILING OBLIGATIONS ARE
SATISFIED AND ANY APPLICABLE FEES ARE PAID), AND IT HAS PROVIDED SUCH
INFORMATION AND MADE SUCH REPRESENTATIONS TO THE SELLER OF THE SECURITIES AS MAY
BE REASONABLY NECESSARY FOR THE SELLER TO RELY ON SUCH EXEMPTIONS AND AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE DATE ON WHICH RESALE RESTRICTIONS TERMINATE
UNDER APPLICABLE SECURITIES LAWS.
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[FORM OF ASSIGNMENT FOR
RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip or postal code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date the Shelf Registration Statement is declared
effective or (ii) the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) This Note is being transferred in compliance
with the exemption from registration under the
Securities Act provided by Rule 144A thereunder.
or
[ ] (b) This Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or Security Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.05 and 3.07 of the Indenture
shall have been satisfied.
Date:____________________ Your Signature:________________________
(Sign exactly as your name
appears on the face of this Note)
_________________________
Signature Guaranteed
44
(Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee)
45
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_________________________ ________________________________
NOTICE: To be executed by
an executive officer
46
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE TO A NOMINEE OF THE DEPOSITORY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS 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.
47
[FORM OF NOTE]
CUSIP ___________
NORSKE XXXX CANADA LIMITED
No. ___________ US$______________
7-3/8% SENIOR NOTE DUE 2014
NORSKE XXXX CANADA LIMITED, a corporation incorporated under
the laws of Canada (the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, promises to
pay to CEDE & Co. or registered assigns the principal sum of [_________________]
U.S. DOLLARS (US$________) on March 1, 2014 at the office or agency of the
Company referred to below.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Elk Falls Pulp and Paper Limited, Norske Xxxx Canada (Japan)
Ltd., Norske Xxxx Canada Finance Limited, Norske Xxxx Canada Pulp Operations
Limited, Norske Xxxx Canada Pulp Sales Inc., Norske Xxxx Canada Sales Inc.,
Norske Xxxx Canada (USA) Inc., Norske Xxxx Canada Services (Hungary) Limited
Liability Company, NSCL Holdings Inc., Pacifica Papers Sales Ltd., Pacifica
Papers Sales Inc., Pacifica Poplars Ltd., Pacifica Poplars Inc., Pacifica Papers
US Inc. and NorskeCanada (collectively the "Guarantors," which term includes any
successor under the Indenture hereinafter referred to and any Restricted
Subsidiary that provides a Guarantee pursuant to the Indenture) have jointly and
severally, fully and unconditionally, guaranteed the payment of principal of,
premium, if any, and interest on the Notes.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
48
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NORSKE XXXX CANADA LIMITED
By: ___________________________________
Name:
Title:
Dated:
49
Certificate of Authentication
This is one of the 7-3/8% Senior Notes due 2014 referred to in
the within-mentioned Indenture.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Name:
Title:
Dated:
50
[FORM OF REVERSE OF NOTE]
NORSKE XXXX CANADA LIMITED
7-3/8% SENIOR NOTE DUE 2014
1. INTEREST. NORSKE XXXX CANADA LIMITED, a corporation
incorporated under the laws of Canada (the "Company"), promises to pay, until
the principal hereof is paid or made available for payment, interest on the
principal amount set forth on the face hereof at a rate of 7-3/8% per annum.
Interest hereon will accrue from and including the most recent date to which
interest has been paid or, if no interest has been paid, from and including
March 23, 2004 to but excluding the date on which interest is paid. Interest
shall be payable in arrears on each March 1 and September 1, commencing
September 1, 2004. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. The Company shall pay interest on overdue
principal and on overdue interest (to the full extent permitted by law) at a
rate of 7-3/8% per annum.
2. METHOD OF PAYMENT. The Company will pay interest hereon
(except defaulted interest) 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 (whether or not a Business Day). Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Interest may be paid by
check mailed to the Holder entitled thereto at the address indicated on the
register for the Notes maintained by the Security Registrar.
3. PAYING AGENT AND SECURITY REGISTRAR. Initially, Xxxxx Fargo
Bank, National Association (the "Trustee") will act as a Paying Agent and
Security Registrar. The Company may change any Paying Agent or Security
Registrar without notice. The Company or any of its Affiliates may act as Paying
Agent or Security Registrar.
4. INDENTURE. This Note is one of a duly authorized issue of
Notes of the Company, designated as its 7-3/8% Senior Notes due 2014 (herein
called the "Notes"). The Company issued the Notes under an Indenture dated as of
March 23, 2004 (the "Indenture") among the Company, the Guarantors and the
Trustee. This is one of an issue of Notes of the Company issued, or to be
issued, under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb), as in effect on the
date of the Indenture (the "Act"). The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of them. 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.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. The Notes are general, unsecured
obligations of the Company.
51
5. ADDITIONAL AMOUNTS. The Company will pay to the Holders of
Notes such Additional Amounts as may become payable under Section 10.16 of the
Indenture.
6. OPTIONAL REDEMPTION. The Company, at its option, may redeem
the Notes, in whole at any time, or in part from time to time on or after March
1, 2009 upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of the aggregate principal amount thereof) set
forth below, together, in each case, with accrued and unpaid interest to the
Redemption Date, if redeemed during the twelve month period beginning on March 1
of each year listed below:
YEAR REDEMPTION PRICE
2009...................................... 103.688%
2010...................................... 102.458%
2011...................................... 101.229%
2012 and thereafter....................... 100.000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 35% of the principal amount of Notes issued under this Indenture
at any time and from time to time prior to March 1, 2007 at a redemption price
equal to 107.375% of the aggregate principal amount so redeemed, plus accrued
and unpaid interest to the Redemption Date, out of the net cash proceeds of one
or more Public Equity Offerings; PROVIDED that at least 65% of the aggregate
principal amount of Notes issued under this Indenture remains outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 90 days following the closing of any such Public Equity
Offering.
7. TAX REDEMPTION. The Notes are redeemable, in whole but not
in part, at the option of the Company at any time, upon not less than 30 nor
more than 60 days' prior written notice, mailed by first class mail to each
Holder at its last address appearing in the register of Notes maintained by the
Security Registrar at 100% of the principal amount thereof plus accrued and
unpaid interest thereon to the Redemption Date, if the Company or any Guarantor
is or would become obligated to pay, on the next date on which any amount would
be payable with respect to the Notes or the Guarantees, any Additional Amounts
as a result of a change in, or amendment to, the laws (or any regulations
promulgated thereunder) of any Taxing Authority, or any changes in, or amendment
to, any official position regarding the application or interpretation of such
laws or regulations, which change or amendment is announced on or after the
Issue Date; PROVIDED that the Company or such Guarantor determines, in its
business judgment, that the obligation to pay such Additional Amounts cannot be
avoided by the use of reasonable measures available to the Company or such
Guarantor (not including substitution of the obligor under the Notes); and
PROVIDED, FURTHER, that (i) no such notice of redemption may be given earlier
than 90 days prior to the earliest date on which the Company or such Guarantor
would but for such redemption be obligated to pay such Additional Amounts or
later than 270 days after the Company or such Guarantor first becomes liable to
pay any Additional Amounts as a result of any changes in or amendments to laws,
regulations or official positions described above and (ii) at the time such
notice is given, the Company's or such Guarantor's obligation to pay such
Additional Amounts remains in effect.
52
Prior to the publication of any notice of redemption pursuant
to this provision, the Company will deliver to the Trustee (a) an Officer's
Certificate stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right of the Company so to redeem have occurred and (b) an opinion of legal
counsel qualified under the laws of the relevant jurisdiction to the effect that
the Company or such Guarantor has or will become obligated to pay such
Additional Amounts as a result of such amendment or change as described above.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption,
unless the Company shall fail to redeem any Notes.
9. OFFERS TO PURCHASE. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
10. REGISTRATION RIGHTS. Pursuant to a Registration Rights
Agreement among the Company, the Guarantors and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Banc of America Securities LLC, CIBC World Markets Corp.,
Scotia Capital (USA) Inc., RBC Capital Markets Corporation, TD Securities, Inc.,
Xxxxxx Xxxxxxx Corp., HSBC Securities (USA) Inc. and NBF Securities (USA) Corp.,
as Initial Purchasers of the Notes, the Company and the Guarantors will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Note shall have the right to exchange this Note for notes of a separate series
issued under the Indenture (or a trust indenture substantially identical to the
Indenture in accordance with the terms of the Registration Rights Agreement)
which have been registered under the Securities Act, in like principal amount
and having substantially identical terms as the Notes. The Holders shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of US$1,000 and integral
multiples of US$1,000. A Holder may transfer or exchange Notes in accordance
with the Indenture. The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay to
it any taxes and fees required by law or permitted by the Indenture. The
Security Registrar need not register the transfer of or exchange any Notes or
portion of a Note selected for redemption, or register the transfer of or
exchange any Notes for a period of 15 days before a mailing of notice of
redemption.
12. PERSONS DEEMED OWNERS. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
13. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the
53
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
14. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company, any
Guarantors and the Trustee may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Act and making any change that does not materially and adversely affect the
rights of any Holder. Other amendments and modifications of the Indenture or the
Notes may be made by the Company, any Guarantors and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of the outstanding Notes, subject to certain exceptions requiring the
consent of the Holders of the particular Notes to be affected.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Debt, make payments in respect of their
Capital Stock or certain Debt, make certain Investments, create or incur liens,
enter into transactions with Affiliates, enter into agreements restricting the
ability of Restricted Subsidiaries to pay dividends and make distributions,
issue Capital Stock of any Restricted Subsidiaries of the Company, and on the
ability of the Company to merge or consolidate with any other Person or transfer
all or substantially all of the Company's or any Guarantor's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to Section 10.04 of the Indenture, the Company must annually report to
the Trustee on compliance with such limitations. Upon the occurrence of a
Fall-away Event, certain restrictive covenants in the Indenture will terminate
as provided in Section 10.17 of the Indenture.
16. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article Eight of the Indenture,
the predecessor corporation will, except as provided in Article Eight, be
released from those obligations.
17. DEFAULTS AND REMEDIES. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in clause (6) or (7) of
Section 5.01(a) of the Indenture with respect to the Company) occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the then outstanding Notes, by written notice to the Trustee
and the Company, may declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued and unpaid
interest to the date of acceleration and the same shall become immediately due
and payable. If an Event of Default specified in clause (6) or (7) of Section
5.01(a) of the Indenture occurs with respect to the Company, the principal
amount of and interest on, all Notes shall IPSO FACTO become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of a majority in 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
55
notice of any continuing default (except a default in payment of principal,
premium, if any, or interest or a default in the observance or performance of
any of the obligations of the Company under Article Five of the Indenture) if it
determines that withholding notice is in their best interests.
18. 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 Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, partner, incorporator or shareholder, of the
Company or any Guarantor or any corporate successor thereto shall have any
liability for any obligations of the Company under the Notes, the Guarantees,
the Indenture or for a claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
20. DISCHARGE. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of all
the Notes or upon the irrevocable deposit with the Trustee of money in United
States dollars or U.S. Government Securities sufficient to pay when due
principal of and interest on the Notes to maturity or redemption, as the case
may be.
21. GUARANTEES. The Note is entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
22. AUTHENTICATION. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
23. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Company and the Guarantors agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Notes.
24. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT
(= 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).
25. 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
55
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.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
NORSKE XXXX CANADA LIMITED
16th Floor
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
XXXXXX
Attention: Corporate Secretary
56
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip or postal code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent 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 other side of
this Note)
__________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee)
57
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 10.10 or Section 10.15 of the
Indenture, check the appropriate box:
/ / Section 10.10 / / Section 10.15
If you want to have only part of the Note purchased by the
Company pursuant to Section 10.10 or Section 10.15 of the Indenture, state the
amount you elect to have purchased:
US$ _______________________________
(multiple of US$1,000)
Date: _____________________________
Your Signature:__________________________
(Sign exactly as your name appears on the
face of this Note)
_______________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee)
SECTION 2.05 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES
(a) The Notes offered and sold in their original distribution in
reliance on Rule 144A shall be issued in the form of one or more Global
Securities in definitive, fully registered form without interest coupons,
substantially in the form of Security set forth in Section 2.04, with such
applicable legends as are provided for in Section 2.04, except as otherwise
permitted herein, and shall be registered in the name of the U.S. Depositary or
its nominee and deposited with the Trustee, at its Corporate Trust Office, as
custodian for the U.S. Depositary, or such other office of the Trustee or its
affiliate at which its corporate trust operations as custodian for the U.S.
Depositary are conducted, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, for credit by the U.S. Depositary to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct). Such Global Securities, together
with their Successor Securities which are Global Securities other than the
Regulation S Global Security (as defined herein), are collectively herein called
the "Restricted Global Security." The aggregate stated amount at maturity of the
Restricted Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the U.S.
Depositary, in connection with a corresponding decrease or increase in the
aggregate stated amount at maturity of the Regulation S Global Security, as
hereinafter provided.
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(b) The Notes offered and sold in reliance on Regulation S shall be
issued in the form of one or more Global Securities (collectively, the
"Regulation S Global Security") in definitive, fully registered form without
interest coupons, substantially in the form of Security set forth in Section
2.04, with such applicable legends as are provided for in Section 2.04, except
as otherwise permitted herein. Such Global Securities shall be registered in the
name of the U.S. Depositary or its nominee and deposited with the Trustee, at
its Corporate Trust Office, as custodian for the U.S. Depositary, or such other
office of the Trustee or its affiliate at which its corporate trust operations
as custodian for the US Depositary are conducted, duly executed by the Company
and authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts at the U.S. Depositary of the depositories for Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear Clearance System ("Euroclear"), or for Clearstream Banking, societe
anonyme ("Clearstream"), in turn for credit to the respective accounts of
beneficial owners of the Securities represented thereby (or such other accounts
as they may direct) in accordance with the rules thereof. The aggregate stated
amount at maturity of the Regulation S Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the U.S. Depositary, in connection with a corresponding decrease
or increase in the aggregate stated amount at maturity of the Restricted Global
Security, as hereinafter provided.
(c) Neither members of, nor direct or indirect participants in, DTC
("DTC Agent Members") shall have any rights under this Indenture with respect to
any Global Note held on their behalf by DTC, or the Trustee as its custodian, or
under the Global Notes, and DTC may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and DTC Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder of any Note.
ARTICLE III
THE SECURITIES
SECTION 3.01 TITLE AND TERMS.
(a) The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount of US$250,000,000 upon receipt of a
written order of the Company in the form of an Officers' Certificate of the
Company. Thereafter, subject to compliance with Section 3.03, at any time and
from time to time, the Trustee shall authenticate Notes having identical terms
(except as to issue price) in an unlimited amount upon a written order of the
Company in the form of an Officers' Certificate of the Company. In each case,
such written order shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated.
(b) Upon receipt of a Company Request and an Officers' Certificate of
the Company certifying that a registration statement relating to an exchange
offer specified in the Registration Rights Agreement is effective under the
Securities Act and that the conditions
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precedent to a Private Exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes for issuance in exchange for the
Notes tendered for exchange pursuant to such exchange offer registered under the
Securities Act or pursuant to a Private Exchange. Such additional series of
Notes issued in such exchange shall be deemed to be a single series of Notes
outstanding under this Indenture. Exchange Securities or Private Exchange
Securities may have such distinctive series designations and such changes in the
form thereof as are specified in the Company Request referred to in the
preceding sentence.
(c) The principal amount of, premium (if any), and interest on the
Securities shall be payable at the office or agency of the Company in the City
of New York, New York maintained for such purpose or at any other office or
agency maintained by the Company for such purpose; PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
(d) The Securities shall be subject to repurchase by the Company
pursuant to an offer to purchase as provided in Sections 10.10 and 10.15.
(e) The Securities shall be redeemable as provided in Article Eleven.
(f) The Securities shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
(g) Unless the context otherwise requires, the Notes and the Exchange
Securities shall constitute one series for all purposes under this Indenture,
including with respect to any amendment, waiver, acceleration or other Act of
Holders, redemption or offer to purchase.
SECTION 3.02 DENOMINATIONS. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Securities shall be executed on behalf of the Company by one
Officer of the Company. The signature of any of the Officer on the Securities
may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of an
individual who was at any time the proper Officer of the Company shall bind the
Company, notwithstanding that the individual has ceased to hold such office
prior to the authentication and delivery of such Securities or did not hold such
offices at the date of the Securities.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
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(d) At any time and from time to time after the execution and delivery
of this Indenture and after the effectiveness of a registration statement under
the Securities Act with respect thereto, the Company may deliver Exchange
Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Exchange
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. Each such Company Order shall be
accompanied by an Opinion of Counsel stating in substance that all conditions
hereunder precedent to the authentication and delivery of such Exchange
Securities have been complied with and that such Exchange Securities have been
duly executed and, when such Securities have been duly authenticated and
delivered by the Trustee, will be duly issued and delivered and will constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting creditors' rights generally and subject to
the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(e) Each Security shall be dated the date of its authentication.
(f) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Note to
the Trustee for cancellation as provided in Section 3.13, for all purposes of
this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Upon prior notice to, and approval by (which approval shall not be
unreasonably withheld), the Company, the Trustee may appoint an authenticating
agent to authenticate the Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate the 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 the Company and Affiliates of the Company. Each Paying Agent
is designated as an authenticating agent for purposes of this Indenture.
(g) In case the Company, pursuant to Article Eight, shall be
amalgamated, consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of substantially all of its
properties and assets to any Person, and the successor Person resulting from
such amalgamation, consolidation, or surviving such merger, or into which the
Company shall have been merged, or the successor Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Eight, any of the Securities authenticated or delivered prior to such
amalgamation, consolidation, merger, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person,
61
be exchanged for other Securities executed in the name of the successor Person
with such changes in phraseology and form as may be appropriate, but otherwise
in substance of like tenor as the Securities surrendered for such exchange and
of like principal amount; and the Trustee upon Company Order of the successor
Person, shall authenticate and deliver replacement Securities as specified in
such request for the purpose of such exchange. If replacement Securities shall
at any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of any Holder
but without expense to such Holder, shall provide for the exchange of all
Securities at the time outstanding held by such Holder for Securities
authenticated and delivered in such new name.
SECTION 3.04 TEMPORARY SECURITIES.
(a) Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
(b) If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1.15, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.05 DEFAULTED INTEREST. If the Company defaults on a payment
of interest on the Notes, it shall pay the defaulted interest in any lawful
manner, plus (to the extent permitted by law) any interest payable on the
defaulted interest, in accordance with paragraph 1 of the Notes, to the Persons
who are Holders on a subsequent special record date, which date shall be at
least five Business Days prior to the payment date. The Company shall fix such
special record date and payment date in a manner satisfactory to the Trustee. At
least 10 days before such special record date, the Company shall mail to each
Holder a notice that states the special record date, the payment date and the
amount of defaulted interest, and interest payable on defaulted interest, if
any, to be paid. The Company may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of
any securities exchange on which the Notes may be listed and, upon such notice
as may be required by such exchange, if, after written notice given by the
Company to the Trustee of the proposed payment pursuant to this sentence, such
manner of payment shall be deemed practicable by the Trustee.
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SECTION 3.06 DEPOSIT OF MONEYS. Prior to 10:00 a.m., New York City
time, on each Interest Payment Date and the Maturity Date, the Company shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments due on such Interest Payment Date or the
Maturity Date, as the case may be, in a timely manner which permits the Trustee
to remit payment to the Holders on such Interest Payment Date or the Maturity
Date, as the case may be. Except as otherwise provided herein, the principal and
interest on Global Notes shall be payable to DTC or the nominee of DTC, as the
case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall be
payable, either in person or by mail, at the office of the Paying Agent.
SECTION 3.07 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
GENERALLY; RESTRICTIONS ON TRANSFER AND EXCHANGE; SECURITIES ACT LEGENDS.
(a) REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY.
(1) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to Section
1.15 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and of transfers and exchanges of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein
provided. Such Security Register shall distinguish between Notes and
Exchange Securities.
(2) Upon surrender for registration of transfer of any Notes
at an office or agency of the Company designated pursuant to Section
1.15 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations
and of a like aggregate principal amount of Notes bearing such
restrictive legends as may be required by this Indenture.
(3) At the option of the Holder, and subject to the other
provisions of this Section 3.07, Notes may be exchanged for other
Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for
exchange, and subject to the other provisions of this Section 3.07, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
(4) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and (except for the differences between Notes
and Exchange Securities provided for in this Indenture) entitled to the
same benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
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(5) Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney
duly authorized in writing.
(6) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Sections 3.04,
9.05, 11.06 or in accordance with any offer to purchase pursuant to
Section 10.10 or 10.15 not involving any transfer.
(7) The Company shall not be required (i) to issue, register
the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities selected for redemption under
Section 11.04 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
(b) CERTAIN TRANSFERS AND EXCHANGES.
(1) Notwithstanding any other provisions of this Indenture or
the Securities, transfers and exchanges of Securities and beneficial
interests in a Global Security of the kinds specified in this Section
3.07(b) shall be made only in accordance with this Section 3.07(b).
Transfers and exchanges subject to this Section 3.07(b) shall also be
subject to the other provisions of this Indenture that are not
inconsistent with this Section 3.07(b). Each Holder of a Note agrees to
indemnify the Company and the Trustee against any liability that may
result from the transfer, exchange or assignment of such Holder's Note
in violation of any provision of this Indenture and/or applicable U.S.
federal or state securities laws or Canadian provincial securities
laws.
(2) Unless and until (A) Notes are sold under an effective
Registration Statement, or (B) Notes are exchanged for an Exchange
Security in connection with an effective Registration Statement,
pursuant to the Registration Rights Agreement, the following provisions
shall apply:
(i) RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL
SECURITY. If the holder of a beneficial interest in the
Restricted Global Security wishes at any time to transfer such
interest to a Person who is required or permitted to take
delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected,
subject to the rules and procedures of the U.S. Depositary,
Euroclear and Clearstream, in each case to the extent
applicable (the "Applicable Procedures"), only in accordance
with the provisions of this Section 3.07(b)(2)(i). Upon
receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable
Procedures from
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any member of, or direct participants in, the U.S. Depositary
("Agent Members") directing the Trustee to credit or cause to
be credited to a specified Agent Member's account a beneficial
interest in the Regulation S Global Security in a principal
amount equal to that of the beneficial interest in the
Restricted Global Security to be so transferred, (B) a written
order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent
Member (and the Euroclear or Clearstream account, as the case
may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest and (C) a
Regulation S Certificate, substantially in the form of Annex A
hereto given by the holder of such beneficial interest, the
principal amount of the Restricted Global Security shall be
reduced, and the principal amount of the Regulation S Global
Security shall be increased, by the principal amount of the
beneficial interest in the Restricted Global Security to be so
transferred, in each case by means of an appropriate
adjustment on the records of the Trustee, as Security
Registrar, and the Trustee, as Security Registrar, shall
instruct the U.S. Depositary or its authorized representative
to make a corresponding adjustment to its records and to
credit or cause to be credited to the account of the Person
specified in such instructions (which shall be the Agent
Member for Euroclear or Clearstream or both, as the case may
be) a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount so transferred.
(ii) REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY. If the holder of a beneficial interest in the
Regulation S Global Security wishes at any time to transfer
such interest to a Person who is required or permitted to take
delivery thereof in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with
this Section 3.07(b)(2)(ii). Upon receipt by the Trustee, as
Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Trustee to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in the
Restricted Global Security in a principal amount equal to that
of the beneficial interest in the Regulation S Global Security
to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with,
and the account of the Agent Member (and, if applicable, the
Euroclear or Clearstream account, as the case may be) to be
debited for, such beneficial interest and (C) a Restricted
Securities Certificate, substantially in the form of Annex B
hereto given by the holder of such beneficial interest, the
principal amount of the Restricted Global Security shall be
reduced, and the principal amount of the Regulation S Global
Security shall be increased, by the principal amount of the
beneficial interest in the Restricted Global Security to be so
transferred, in each case by means of an appropriate
adjustment on the records of the Trustee, as Security
Registrar, and the Trustee, as Security Registrar, shall
instruct the U.S. Depositary or its authorized representative
to make a corresponding adjustment to its records and to
credit or cause to be credited to the account of the Person
65
specified in such instructions a beneficial interest in the
Regulation S Global Security having a principal amount equal
to the amount so transferred.
(iii) NON-GLOBAL SECURITY FOR NON-GLOBAL SECURITY. A
Security that bears a Securities Act legend that is not a
Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that
is not a Global Security as provided in Section 3.07(a),
PROVIDED that, if the Security to be transferred in whole or
in part is a Restricted Security, or is a Regulation S
Security, then the Trustee shall have received (A) a
Restricted Securities Certificate substantially in the form
attached hereto as Annex A and duly executed by the transferor
Holder or his attorney duly authorized in writing, in which
case the transferee Holder shall take delivery in the form of
a Restricted Security, or (B) a Regulation S Certificate,
substantially in the form attached hereto as Annex B and duly
executed by the transferee Holder of his attorney duly
authorized in writing, in which case the transferee Holder
shall take delivery in the form of a Regulation S Security
(subject in each case to Section 3.07(c)).
(iv) INTERESTS IN REGULATION S GLOBAL SECURITY TO BE
HELD THROUGH EUROCLEAR OR CLEARSTREAM. Interests in the
Regulation S Global Security may be held only through Agent
Members acting for and on behalf of Euroclear and Clearstream,
PROVIDED that this clause (iv) shall not prohibit any transfer
in accordance with Section 3.07(b)(2)(ii) hereof.
(c) SECURITIES ACT LEGENDS. Restricted Securities and their Successor
Securities shall bear a Private Placement Legend and Regulation S Securities and
their Successor Securities shall bear a Private Placement Legend, subject to the
following:
(1) subject to the following clauses of this Section 3.07(c),
a Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(2) subject to the following clauses of this Section 3.07(c),
a new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Securities Act
legend borne by such other Security, PROVIDED that, if such new
Security is required pursuant to Section 3.07(b)(2)(iii) to be issued
in the form of a Restricted Security, it shall bear a Restricted
Securities Legend and, if such new Security is so required to be issued
in the form of a Regulation S Security, it shall bear a Private
Placement Legend;
(3) Securities that are sold or otherwise disposed of pursuant
to an effective registration statement under the Securities Act
(including the shelf registration contemplated by the Registration
Rights Agreement) shall not bear a Securities Act Legend;
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(4) notwithstanding the foregoing provisions of this Section
3.07(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Private
Placement Legend in exchange for such Successor Security as provided in
this Article Three;
(5) Until Securities are sold pursuant to an effective
registration statement under the Securities Act (including the shelf
registration contemplated by the Registration Rights Agreement), no
Securities may be transferred except pursuant to Rule 144A or
Regulation S under the Securities Act. The Trustee shall have no duty
or liability with respect to any Holder's or beneficial owner's
compliance with Rule 144A or Regulation S, as applicable; and
(6) Exchange Securities and their respective Successor
Securities shall not bear a Securities Act Legend.
(d) The provisions of this Section 3.07(d) shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the U.S. Depositary or a nominee
thereof and delivered to the U.S. Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than the U.S. Depositary or a nominee thereof unless (A) the U.S.
Depositary (i) has notified the Company that it is unwilling or unable
to continue as U.S. Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, and
in either case the Company thereupon fails to appoint a successor
depositary within 120 days of such notice, (B) the Company, at its
option, executes and delivers to the Trustee a Company Order that such
Global Security shall be exchanged in whole for Securities that are not
Global Securities, or (C) there shall have occurred and be continuing
an Event of Default with respect to such Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) of this Section 3.07(d) shall be
issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the U.S.
Depositary shall designate and shall bear any legends required
hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the U.S. Depositary to the Trustee, as Security
Registrar. With regard to any Global Security to be exchanged in part,
either
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such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the U.S. Depositary or its nominee
with respect to such Global Security, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of
the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or
upon the order of the U.S. Depositary or an authorized representative
thereof.
(4) In the event of the occurrence of any of the events
specified in clause (2) of this Section 3.07(d), the Company will
promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form, without
interest coupons.
(5) Neither any Agent Members nor any other Persons on whose
behalf Agent Members may act (including Euroclear and Clearstream and
account holders and participants therein) shall have any rights under
this Indenture with respect to any Global Security, or under any Global
Security, and the U.S. Depositary or such nominee, as the case may be,
may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner and Holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the U.S. Depositary or such
nominee, as the case may be, or impair, as between the U.S. Depositary,
its Agent Members and any other person on whose behalf an Agent Member
may act, the operation of customary practices of such Persons governing
the exercise of the rights of a Holder of any Security.
SECTION 3.08 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. (a) If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (2) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or will become within 30 days, due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(c) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that
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may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
(d) Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
(e) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.09 OUTSTANDING NOTES. (a) The Notes outstanding at any time
are all Notes that have been authenticated by the Trustee except for (1) those
cancelled by it, (2) those delivered to it for cancellation, (3) to the extent
set forth in Sections 12.02 and 12.03 hereof, on or after the date on which the
conditions set forth in Section 12.02 or 12.03 hereof have been satisfied, those
Notes theretofore authenticated and delivered by the Trustee hereunder and (4)
those described in this Section 3.09 hereof as not outstanding. Subject to
Section 3.15 hereof, a Note does not cease to be outstanding because the Company
or one of its Affiliates holds the Note.
(b) If a Note is replaced pursuant to Section 3.08 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
(c) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, in its capacity as such, on any Maturity Date
or on any optional redemption date, money sufficient to pay all accrued interest
and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 3.10 COMPUTATION OF INTEREST. (a) Interest on the Notes shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) For the purposes of the Interest Act (Canada) where any interest
payable hereunder or under the Notes is expressed to be computed on the basis of
a 360-day year of twelve 30-day months, the annual rate of interest to which
such stated rate is equivalent is calculable by determining, on the following
basis for the relevant period, the amount of interest accruing during such
period and expressing such amount as a percentage of the outstanding principal
multiplied by the number of days in such period and divided by the number of
days in the year (being 365 or 366, as the case may be):
(1) for any complete calendar month in respect of which such
rate is applicable, the stated rate
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(A) multiplied by the actual number of days in the
year in which such month falls and divided by the actual
number of days in the month, and
(B) multiplied by 30 and divided by 360, and
(2) for any part of a calendar month in respect of which such
rate is applicable, the stated rate multiplied by the actual number of
days in any applicable year, being 365 or 366, as the case may be and
divided by 360.
SECTION 3.11 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest.
(b) Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant regular record date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) of this Section 3.11(b):
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the special record date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to
such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such special record date and
shall no longer be payable pursuant to clause (2) of this Section
3.11(b).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.12 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving, subject
to Section 3.11, payment of interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.13 CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any offer
to purchase pursuant to Section 10.10 or 10.15 shall, if surrendered to any
Person (including the Security Registrar or the Paying Agent) other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company shall deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company.
SECTION 3.14 CUSIP OR ISIN NUMBERS. The Company in issuing the
Securities may use "CUSIP" or "ISIN" numbers and, if so, the Trustee shall use
CUSIP or ISIN numbers in notices of redemption and other notices to Holders as a
convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption or other
notice and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption or notice shall not be
affected by any defect in or such omission of such numbers. The Company shall
promptly notify the Trustee of any such CUSIP or ISIN number used by the Company
in connection with the issuance of the Notes and of any change in the CUSIP or
ISIN number.
SECTION 3.15 TREASURY NOTES. In determining whether the Holders of the
required aggregate principal amount of Notes have concurred in any declaration
of acceleration or notice of default or direction, waiver or consent or any
amendment, modification or other change to this Indenture, Notes owned by the
Company or any Person directly or indirectly
71
controlling or controlled by or under common control with the Company shall be
disregarded as though they were not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent or any amendment, modification or other change to
this Indenture, only Notes as to which the Trustee has received an Officers'
Certificate of the Company stating that such Notes are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee established to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Notes and that the pledgee is not
the Company, a Guarantor, any other obligor on the Notes or any of their
respective Affiliates.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, upon a Company Order and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture (including, but not limited to,
Article Twelve), when:
(1) either,
(A) all Securities theretofore authenticated and
delivered (other than Securities which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.08 and
Notes for whose payment money has theretofore been
irrevocably deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation,
(i) have become due and payable, or
(ii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of subclause (i) or (ii)
of this Section 4.01(a)(1)(B), has deposited or
caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient
to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any,
and interest on the Notes to the
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date of maturity or Redemption Date, as the case may
be together with irrevocable instructions from the
Company directing the Trustee to apply such funds to
the payment thereof at the maturity or redemption, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
(b) Notwithstanding the first paragraph of this Section 4.01, the
Company's obligations under Sections 3.07, 3.08, 3.09, 6.07, 7.01, 10.16, 12.05
and 12.06 hereof and if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (a)(1) of this Section 4.01, the obligations
of the Trustee under Section 4.02 hereof shall survive until the Notes are no
longer outstanding pursuant to the last paragraph of Section 3.09 hereof. After
the Notes are no longer outstanding, the Company's obligations under Sections
6.07, 12.05 and 12.06 hereof shall survive.
SECTION 4.02 APPLICATION OF TRUST MONEY. All money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities 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 amount of, premium, if any, and interest
payable on the Notes for whose payment such money has been deposited with the
Trustee.
SECTION 4.03 MONEYS HELD BY PAYING AGENT
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 12.04 hereof, to the
Company upon a Company Request (or, if such moneys had been deposited by any
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 4.04 MONEYS HELD BY TRUSTEE
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company or any Guarantor in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable, shall be repaid to the Company (or, if
appropriate, any Guarantor) upon a Company Request, or if such moneys are then
held by the Company or any Guarantor in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company and
any Guarantors for the payment thereof, and all liability
73
of the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; PROVIDED that the Trustee or any such Paying Agent, before
being required to make any such repayment, may, at the expense of the Company
and any Guarantors, either mail to each Holder affected, at the address shown in
the Security Register of the Notes maintained by the Security Registrar pursuant
to Section 7.02 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in the City of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or any Guarantor or the release of
any money held in trust by the Company or any Guarantor, as the case may be,
Holders entitled to the money must look only to the Company and any Guarantors
for payment as general creditors unless applicable abandoned property law
designates another Person.
ARTICLE V
REMEDIES
SECTION 5.01 EVENTS OF DEFAULT.
(a) "EVENT OF DEFAULT", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any principal of, or premium, if
any, on the Notes when due (whether at maturity, upon redemption or
otherwise);
(2) default in the payment of any interest on any Note when
due, which default continues for 30 days or more;
(3) default by the Company or any Restricted Subsidiary in the
observance or performance of any other covenant in the Notes or this
Indenture for 60 days after written notice specifying the default and
demanding that such default be remedied from the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Notes then
outstanding (except in the case of a default with respect to Section
10.10, 10.15 or 8.01 hereof, which shall constitute an Event of Default
with such notice requirement but without such passage of time
requirement);
(4) failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Debt of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of such Debt
if, in either case, the aggregate principal amount of such Debt
together with the principal amount of any other Debt not paid at final
maturity or which has been accelerated, aggregates $25,000,000 or more
at any time and such Debt has not been discharged in full, or such
acceleration has not been rescinded or annulled within 30 days after
such final maturity or acceleration;
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(5) any final judgment or judgments which can no longer be
appealed for the payment of money in excess of $25,000,000 (in excess
of amounts covered by insurance and as to which the insurer has
acknowledged coverage) shall be rendered against the Company or any
Restricted Subsidiary, and shall not be discharged for any period of 60
consecutive days during which a stay of enforcement shall not be in
effect;
(6) the Company or any Restricted Subsidiary with assets that
would be considered a "Significant Subsidiary" of the Company pursuant
to Rule 1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended, pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or commences
proceedings to make a proposal or a compromise or arrangement,
(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;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against either of the Company or
any Restricted Subsidiary that would be considered a
"Significant Subsidiary" of the Company pursuant to Rule
1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended in an involuntary case,
(b) appoints a custodian of either of the Company or
any Restricted Subsidiary that would be considered a
"Significant Subsidiary" of the Company pursuant to Rule
1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended or for all or substantially all of the property of
either of the Company or any such Restricted Subsidiary, or
(c) orders the liquidation of either of the Company
or any Restricted Subsidiary that would be considered a
"Significant Subsidiary" of the Company pursuant to Rule
1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended,
and the order or decree remains unstayed and in effect for 60 days; or
(8) any of the Guarantees of a Material Subsidiary ceases to
be in full force and effect or any of the Guarantees of a Material
Subsidiary is declared to be null
75
and void and unenforceable or any of the Guarantees of a Material
Subsidiary is found to be invalid or any of the Guarantors denies its
liability under its Guarantee (other than by reason of release of a
Guarantor in accordance with Section 13.05 hereof).
SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default (other than an Event of Default specified in
Section 5.01(a)(6) or (7)) shall have occurred and be continuing, and if the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding by written notice to the Company and the Trustee so
declares, the entire principal amount of all the Notes then outstanding plus
accrued and unpaid interest to the date of acceleration shall become immediately
due and payable; PROVIDED that in case an Event of Default described in clause
(6) or (7) of Section 5.01(a) hereof, the principal, premium and interest amount
with respect to all of the Notes shall be due and payable immediately without
any declaration or other act on the part of the Trustee or the Holders;
PROVIDED, FURTHER that after any such acceleration but before a judgment or
decree based on acceleration is obtained by the Trustee, the Holders of a
majority in aggregate principal amount of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if (i) all Events of Default,
other than non-payment of principal, premium, if any, or interest that has
become due solely because of the acceleration, have been cured or waived as
provided in this Indenture, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iii) the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances
including the reasonable fees and expenses of counsel and (iv) in the event of
the cure or waiver of an Event of Default of the type described in clause (6) or
(7) of Section 5.01(a) hereof, the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
(b) At any time after such a declaration of acceleration has been made
(or an Event of Default specified in Section 5.01(a)(6) or (7) shall have
occurred and be continuing) and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article Five
provided, the Holders of a majority in aggregate principal amount of the
outstanding Notes, by written notice to the Company and the Trustee, may rescind
and annul such declaration (or such Event of Default) and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all accrued and unpaid interest on all outstanding
Notes,
(B) the principal amount and premium, if any, of the
outstanding Notes which have become due otherwise
than by such declaration of acceleration (including
any Notes required to have been purchased pursuant to
an offer to purchase made by the Company) and, to the
extent that payment of such interest is lawful,
interest thereon at the rate provided by the Notes,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate
provided by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, or premium, 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 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. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law. Any costs associated with actions taken by the Trustee under this Section
5.03 shall be reimbursed to the Trustee by the Company.
SECTION 5.04 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that if,
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal amount of
(or premium, if any, on) any Security at the Maturity Date thereof or,
with respect to any Security required to have been purchased pursuant
to an offer to purchase made by the Company, at the Purchase Date
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal amount at maturity (and premium, if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue on any overdue interest, at the rate provided by the
Securities, and, in addition thereto, 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.
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(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any Guarantor and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Guarantor, wherever situated.
(c) If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.05 TRUSTEE MAY FILE PROOFS OF CLAIM.
(a) In case of any judicial proceeding relative to the Company or any
Guarantor, its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
(b) No provision of this Indenture 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
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.06 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.07 APPLICATION OF MONEY COLLECTED. Subject to Article Twelve,
any money collected by the Trustee pursuant to this Article Five, shall be
applied in the following order, at the date or dates (including record dates)
fixed by the Trustee and, in case of
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the distribution of such money on account of the principal amount of, premium,
if any, and interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07; and
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional
Interest, if any) as to each, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
SECTION 5.08 LIMITATION ON SUITS. Subject to Section 5.17 of this
Indenture, no Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of
the Notes then outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Notes then outstanding;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored
79
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in Section 3.08, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS. The Holders of a majority aggregate
principal amount of the Notes outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee by this
Indenture. The Trustee, however, may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of another Holder not taking part in such
direction, and the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or if the Trustee in good faith shall, by
a Responsible Officer, determine that the proceedings so directed may involve it
in personal liability; PROVIDED that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13 WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT. Subject to
Sections 5.02, 5.08 and 9.02 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding by written notice to the Trustee
have the right to waive any existing Default or Event of Default or compliance
with any provision of this Indenture or the Notes. The Company shall deliver to
the Trustee an Officers' Certificate stating that the requisite percentage of
Holders has consented to such waiver. 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; PROVIDED that no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 5.14 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, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, that neither this
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Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee. This Section 5.14 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.16 hereof or a suit by Holders
of more than 10% in aggregate principal amount of the Notes then outstanding.
SECTION 5.15 WAIVER OF STAY, EXTENSION OR USURY LAWS. Each of the
Company and the Guarantors covenants (to the extent that they may lawfully do
so) that they will not at any time insist upon, or plead (as a defense or
otherwise), or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law, wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or WHICH WOULD prohibit or forgive the Company and
any Guarantors from paying all or any portion of the principal of, premium, if
any, and/or interest on the Notes as contemplated herein; and the Company and
any Guarantors (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage or any such law and covenants that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but they will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16 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 of, or premium, (if any), and interest on such Note
(including Additional Interest) on or after the respective due dates expressed
on such Note, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of such Holder.
SECTION 5.17 COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of principal, premium or interest specified in clause (1) or (2) of
Section 5.01(a) hereof occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any Guarantor for the whole amount of unpaid principal and accrued interest
remaining unpaid, together with interest on overdue principal and, to the extent
that payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate set forth in the Notes, and such further
amounts 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.
ARTICLE VI
THE TRUSTEE
SECTION 6.01 DUTIES OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the same circumstances in the conduct of such person's own affairs.
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(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture.
(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 but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform on their face to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations, the accuracy of the signatures
or other facts stated therein).
(c) The Trustee may not be relieved from liability 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 6.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(3) The Trustee shall 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 the terms of Sections 5.12 and 5.13 hereof.
(4) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights, powers or duties if
it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a), (b)
and (c) of this Section 6.01 shall govern every provision of this Indenture that
in any way relates to the Trustee; PROVIDED that the Trustee's conduct does not
constitute negligence or bad faith.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
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SECTION 6.02 RIGHTS OF TRUSTEE.
Subject to Section 6.01 hereof:
(a) The Trustee may rely on any document reasonably 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) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall conform in
all material respects to the provisions of Section 1.02(b) hereof. The Trustee
shall be protected and shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
(d) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed by it
with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(f) The Trustee may consult with counsel of its selection, which may
include counsel to the Company or the Guarantors, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(g) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document.
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the Notes and
this Indenture. As used herein, the term "actual knowledge" means the actual
fact or statement of knowing, without any duty to make any investigation with
regard thereto.
(j) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
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(k) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against any loss, liability or expense which may be incurred therein
or thereby.
(l) The Trustee shall not be responsible for any information contained
in any notice provision provided to the Trustee by the Company for distribution
to the Holders.
(m) It being understood that the relevant rights, powers, benefits,
immunities and indemnities of or in favor of the Trustee under this Indenture
shall apply and be available to the Trustee in respect of the various capacities
in which it acts under this Indenture.
SECTION 6.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the either of the Company or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, shall
be subject to Sections 6.10 and 6.11 hereof.
SECTION 6.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes or any Guarantee, it
shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Company or any
Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, any Guarantee or this Indenture
other than the Trustee's certificate of authentication.
SECTION 6.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if the Trustee has actual
knowledge of such default, the Trustee shall mail to each Holder notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of the principal of, or premium, if any, or interest on any Note or a
default in the observance or performance of any of the obligations of the
Company under Article Five, 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 best interest of the Holders.
SECTION 6.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) If required by Trust Indenture Act ss. 313(a), within 90 days after
December 31 of any year, commencing December 31, 2003, the Trustee shall mail to
each Holder a brief report dated as of such December 31 that complies with Trust
Indenture Act ss. 313(a). The Trustee also shall comply with Trust Indenture Act
ss. 313(b)(2). The Trustee shall also transmit by mail all reports as required
by Trust Indenture Act ss. 313(c) and Trust Indenture Act ss. 313(d).
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(b) Reports pursuant to this Section 6.06 shall be transmitted by mail:
(i) to all Holders of Notes, as the names and addresses of
such Holders appear on the Security Registrar's books; and
(ii) to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
(c) A copy of each report at the time of its mailing to Holders shall
be filed with the Commission and each stock exchange on which the Notes are
listed. The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 6.07 COMPENSATION AND INDEMNITY.
(a) The Company and any Guarantors shall pay to the Trustee and each
Agent from time to time reasonable compensation for its services hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Company and any
Guarantors shall reimburse the Trustee and each Agent upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Company and any Guarantors shall indemnify each of the Trustee
and any predecessor Trustee and each Agent for, and hold each of them harmless
against, any and all loss, damage, claim, liability or expense, including
without limitation taxes (other than taxes based on the income of the Trustee or
such Agent) and reasonable attorneys' fees and expenses incurred by each of them
in connection with the acceptance or performance of its duties under this
Indenture including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder (including, without limitation, settlement
costs). The Company and any Guarantor need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The
Trustee or Agent, as the case may be, shall notify the Company and any
Guarantors in writing promptly of any claim asserted against the Trustee or such
Agent for which it may seek indemnity. However, the failure by the Trustee or
such Agent to so notify the Company and any Guarantors shall not relieve the
Company and any Guarantors of their obligations hereunder.
Notwithstanding the foregoing, the Company and any Guarantors need not
reimburse the Trustee or any Agent for any expense or indemnify it against any
loss or liability incurred by the Trustee or such Agent, as the case may be,
resulting from its own negligence, willful misconduct or bad faith. To secure
the payment obligations of the Company and any Guarantors in this Section 6.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee except such money or property held in trust to pay
principal of and interest on particular Notes. The obligations of the Company
and any Guarantors under this Section 6.07 to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for
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expenses, disbursements and advances shall be joint and several liabilities of
the Company and any Guarantors and shall survive the resignation or removal of
the Trustee and the satisfaction, discharge or other termination of this
Indenture, including any termination or rejection hereof under any Bankruptcy
Law.
When the Trustee incurs expenses (including reasonable fees and
expenses of its Agents and counsel) or renders services after an Event of
Default specified in clause (6) or (7) of Section 5.01(a) hereof occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 6.08 REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign by so notifying the Company and any
Guarantors in writing. The Holders of a majority in aggregate principal amount
of the outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
(i) the Trustee fails to comply with Section 6.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of performing its
duties hereunder.
(b) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify the Holders of such
event and shall promptly appoint a successor Trustee. Within one year after such
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the Notes then outstanding may appoint a successor Trustee to replace
such successor Trustee appointed by the Company.
(c) 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 a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If the Trustee fails to comply with Section 6.10 hereof, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
6.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee
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under this Indenture. A successor Trustee shall mail notice of its succession to
each Holder. Notwithstanding replacement of the Trustee pursuant to this Section
6.08, the Company's and any Guarantor's obligations under Section 6.07 hereof
shall continue for the benefit of the retiring Trustee. No successor Trustee
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 6.09 SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
subject to Section 6.10 hereof, the successor corporation without any further
act shall be the successor Trustee; PROVIDED such entity shall be otherwise
qualified and eligible under this Article Six. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act ss. 310(a)(1) and (2) in every respect. The
Trustee (together with its corporate parent) shall have a combined capital and
surplus of at least US$100,000,000 as set forth in the most recent applicable
published annual report of condition. The Trustee shall comply with Trust
Indenture Act ss. 310(b), including the provision in Trust Indenture Act ss.
310(b)(1). If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Trust Indenture Act ss. 311(a), excluding
any creditor relationship listed in Trust Indenture Act ss. 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act ss.
311(a) to the extent indicated therein.
SECTION 6.12 PAYING AGENTS.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 6.12:
(i) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company, any Guarantor
or by any other obligor on the Notes) in trust for the benefit of
Holders of the Notes or the Trustee;
(ii) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
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(iii) that it will give the Trustee written notice within
three Business Days of any failure of the Company, any Guarantor or by
any obligor on the Notes in the payment of any installment of the
principal of, premium, if any, or interest on, the Notes when the same
shall be due and payable.
SECTION 6.13 DISQUALIFICATION: CONFLICTING INTERESTS. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. (a) The Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 3.08, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions to this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
(b) Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall otherwise be eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class
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mail, postage prepaid, to all Holders as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
(e) If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
"This is one of the Securities described in the within-mentioned
Indenture.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:_________________________________________
As Authenticating Agent
By:_________________________________________
Authorized Signatory"
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
If the Trustee is not the Security Registrar the Company will furnish or cause
to be furnished to the Trustee:
(a) at least five Business Days before each Interest Payment Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request,
a list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders.
SECTION 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the
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Trustee in its capacity as Security Registrar. As the Security Registrar, the
Trustee will maintain the list in the form of the Security Register. The Trustee
may destroy any list furnished to it as provided in Section 7.01 upon receipt of
a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to Section 312 of the Trust Indenture Act.
SECTION 7.03 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
ARTICLE VIII
AMALGAMATIONS, MERGERS, CONSOLIDATIONS
AND CERTAIN SALES AND PURCHASES OF ASSETS
SECTION 8.01 THE COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, consolidate with, amalgamate with, merge with or
into, or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the assets of the Company (determined on a consolidated
basis for the Company and its Restricted Subsidiaries) in one transaction or a
series of related transactions to, any Person unless:
(1) (A) the Company or such Restricted Subsidiary, as the case
may be, shall be the continuing Person, (B) in the case of a Restricted
Subsidiary, the Person is also a Restricted Subsidiary, and one of the
Restricted Subsidiaries is the continuing Person, or (C) the Person (if
other than the Company or such Restricted Subsidiary) formed by such
consolidation or amalgamation or into which the Company or such
Restricted Subsidiary, as the case may be, is merged or assigned,
transferred, leased, conveyed or otherwise disposed of shall be
organized and existing under the laws of the United States or any State
thereof or the District of Columbia or the laws of Canada or any
province or territory thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company or
such Restricted Subsidiary, as the case may be, under this
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Indenture, the Notes and any Guarantee, as the case may be, and the
obligations thereunder shall remain in full force and effect;
(2) immediately before and immediately after giving effect to
such transaction (including, without limitation, giving effect to any
Debt and Acquired Debt incurred or anticipated to be incurred and any
Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred and be continuing; and
(3) immediately after giving effect to such transaction on a
PRO FORMA basis the Company or such Person (A) could incur at least
US$1.00 of additional Debt (other than Permitted Debt) pursuant to
Section 10.06 hereof or (B) shall have a Consolidated Fixed Charge
Coverage Ratio that is greater than the Consolidated Fixed Charge
Coverage Ratio of the Company immediately prior to the transaction;
PROVIDED that the Company or a Guarantor may merge into or amalgamate
with or sell all or substantially all of its assets to the Company or
another Guarantor, as the case may be, without complying with this
clause (3).
(b) In connection with any consolidation, merger or transfer of assets
contemplated by this Section 8.01, prior to the consummation of such transaction
the Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, amalgamation,
merger or transfer and the supplemental indenture in respect thereto comply with
this provision and that all conditions precedent herein provided for relating to
such transaction or transactions have been complied with.
For purposes of clauses (a) and (b) of this Section 8.01, the transfer
(by lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
SECTION 8.02 SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation,
amalgamation or merger, or any transfer of all or substantially all of the
assets of the Company or any Restricted Subsidiary in accordance with Section
8.01 hereof, the successor Person formed by such consolidation or amalgamation
or into which the Company or a Restricted Subsidiary is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Restricted Subsidiary under this
Indenture and the Notes with the same effect as if such successor Person had
been named as the Company or such Restricted Subsidiary herein and in the Notes,
and thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes. The foregoing restrictions shall
not apply to any transaction involving a merger of the Company with an Affiliate
solely for the purpose of reincorporating the Company in another jurisdiction.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company and any
Guarantors, when authorized by a Board Resolution of each of them, and the
Trustee, when an Officers' Certificate is provided stating that such amendment
or supplement complies with the provisions of this Section 9.01, may amend,
waive or supplement this Indenture or the Notes without notice to or consent of
any Holder:
(i) to comply with Section 8.01 hereof;
(ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(iii) to comply with any requirements of the Commission under
the Trust Indenture Act;
(iv) to cure any ambiguity, defect or inconsistency;
(v) to add a Guarantor;
(vi) to provide for the issuance of the Exchange Securities or
the Private Exchange Securities in accordance with Section 2.01 hereof
in a manner that does not adversely affect the rights of any Holder;
(vii) to provide for the assumption of the Company's or a
Guarantor's obligations to Holders in the event of a merger,
amalgamation or consolidation in accordance with the terms of this
Indenture;
(viii) in reliance on an Opinion of Counsel, to make any other
change that does not adversely affect the rights of any Holders
hereunder in any material respect;
(ix) to comply with the requirements of the Commission to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(x) to appoint a successor trustee, in the event that the
Trustee is disqualified from acting or ineligible to act as such
because of a conflict of interest, PROVIDED, that, the successor
trustee be otherwise qualified and eligible to act as such under
Article Six of this Indenture.
The Trustee is hereby authorized to join with the Company and any
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
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SECTION 9.02 WITH CONSENT OF HOLDERS. The Company (when authorized by a
Board Resolution) and any Guarantors (when authorized by a Board Resolution)
may, subject to Section 9.06 hereof, direct the Trustee to modify or supplement
this Indenture, the Guarantees and/or the Notes with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes. The Holders of not less than a majority in aggregate principal amount of
the outstanding Notes may waive compliance in a particular instance by the
Company or any Guarantor with any provision of this Indenture or the Notes.
Subject to Section 9.04 hereof, without the consent of each Holder affected,
however, an amendment, supplement or waiver, including a waiver pursuant to
Section 5.13 hereof, may not:
(i) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver to this Indenture;
(ii) reduce the rate of, change the method of calculation of
or change the time for payment of interest, including defaulted
interest, on any Note;
(iii) reduce the principal of or premium on or change the
stated maturity of any Note or change the date on which any Notes may
be subject to redemption or repurchase or reduce the redemption or
repurchase price therefor;
(iv) make any Note payable in money other than that stated in
the Note or change the place of payment from New York, New York;
(v) waive a default on the payment of the principal of,
interest on, or redemption payment with respect to any Note (except a
rescission of acceleration of the Notes in accordance with the terms of
this Indenture or a waiver of the payment default that resulted from
such acceleration in accordance with the terms of this Indenture);
(vi) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment, or permitting Holders of a majority in
aggregate principal amount of Notes to waive Defaults or Events of
Default;
(vii) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control Triggering Event or make and
consummate an Excess Proceeds Offer with respect to any Asset Sale that
has been consummated or modify any of the provisions or definitions
with respect thereto;
(viii) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any Guarantee
in a manner which adversely affects the Holders; or
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(ix) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance with the
terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company and any Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may, but
shall not be obligated to, enter into such supplemental indenture.
It shall 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 shall be sufficient if such consent approves the
substance thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment or
supplement to this Indenture or the Notes shall comply with the Trust Indenture
Act as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement, waiver or other action becomes effective, a consent to it by a
Holder is a continuing consent conclusive and binding upon such Holder and every
subsequent Holder of the same Note or portion thereof, and of any Note issued
upon the transfer thereof or in exchange therefor or in place thereof, even if
notation of the consent is not made on any such Note. Any such Holder or
subsequent Holder, however, may revoke the consent as to his Note or portion of
a Note, if the Trustee receives the written notice of revocation before the date
the amendment, supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
An amendment, supplement, waiver or other action becomes effective in
accordance with its terms and thereafter shall bind every Holder, unless it
makes a change described in any of clauses (i) through (ix) of Section 9.02
hereof. In that case the amendment, supplement, waiver or other action shall
bind each Holder who has consented to it and every
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subsequent Holder or portion of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement, or waiver changes the terms of a Note, the Trustee (in accordance
with the specific written direction of the Company) shall request the Holder of
the Note (in accordance with the specific written direction of the Company) to
deliver it to the Trustee. In such case, the Trustee shall at the expense of the
Company place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, any Guarantors
shall endorse and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall sign
any amendment, supplement or waiver authorized pursuant to this Article Nine if
the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such amendment, supplement
or waiver the Trustee shall be entitled to receive and, subject to Sections 6.01
and 6.02 hereof, shall be fully protected in relying upon an Officers'
Certificate and an Opinion of Counsel stating, in addition to the matters
required by Section 1.02 hereof, that such amendment, supplement or waiver is
authorized or permitted by this Indenture and is a legal, valid and binding
obligation of the Company and any Guarantors, enforceable against the Company
and any Guarantors in accordance with its terms (subject to customary
exceptions).
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.08 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Notes.
ARTICLE X
COVENANTS
SECTION 10.01 PAYMENT OF NOTES. The Company shall pay the principal of
and interest (including all Additional Interest) on the Notes on the dates and
in the manner provided in the Notes and this Indenture. An installment of
principal or interest shall be considered paid on the date it is due if the
Trustee or Paying Agent (if other than the Company, a
95
Subsidiary of the Company or any Guarantor) holds on that date money designated
for and sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
installments of interest, to the extent lawful, at the rate specified in the
Notes.
SECTION 10.02 REPORTS TO HOLDERS. Whether or not required by the rules
and regulations of the Commission, so long as the Notes are outstanding, the
Company shall furnish to the Trustee and, upon request, to the Holders all
annual and quarterly financial information that would be required to be
contained in a filing with the Commission on Forms 20-F, 40-F and 6-K, as
applicable, if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual financial information, a report on
the audit of the financial statements by the Company's independent accountants;
PROVIDED, that (x) such quarterly financial information shall be furnished
within 60 days following the end of each quarter of the Company and (y) such
annual financial information shall be furnished within 180 days following the
end of the fiscal year of the Company. In addition, whether or not required by
the rules and regulations of the Commission, the Company will file with or
furnish to the Commission a copy of all such information and reports with the
Commission for public availability (unless the Commission will not accept such a
filing or furnishing). In addition, the Company shall furnish to the Holders and
to prospective investors, upon request, any information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are
not freely transferable under the Securities Act. The Company, the Guarantors
and their respective subsidiaries will also comply with the other provisions of
Trust Indenture Act ss.314(a).
SECTION 10.03 [INTENTIONALLY OMITTED.]
SECTION 10.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year and on or before 60 days after the end of the first,
second and third quarters of each fiscal year, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during such
fiscal year or fiscal quarter, as the case may be, has been made under the
supervision of the signing Officers with a view to determining whether the
Company and each Guarantor has kept, observed, performed and fulfilled their
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
and each Guarantor 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 hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action they are
taking or propose 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 and any Guarantors are taking or propose to take with respect
thereto.
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(b) The Company and any Guarantors shall, so long as any of the Notes
are outstanding, 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 and any Guarantors
are taking or propose to take with respect thereto.
(c) The Company's fiscal year currently ends on December 31. The
Company will promptly provide written notice to the Trustee of any change in its
fiscal year.
SECTION 10.05 TAXES. The Company and any Guarantors shall, and shall
cause each of their Subsidiaries to, pay prior to delinquency all material
taxes, assessments, and governmental levies except as contested in good faith
and by appropriate proceedings.
SECTION 10.06 LIMITATION ON ADDITIONAL DEBT. (a) The Company shall not,
and shall not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, incur any Debt (including, without limitation, any Acquired Debt),
except Permitted Debt and except that, if no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of such Debt, the Company or any Restricted Subsidiary may incur Debt
(including any Acquired Debt) if the Company's Consolidated Fixed Charge
Coverage Ratio is at least 2.0 to 1. Even if the Company's Consolidated Fixed
Charge Coverage Ratio is less than 2.0 to 1, the Company and its Restricted
Subsidiaries may incur Permitted Debt.
(b) For purposes of determining compliance with this Section 10.06, in
the event that an item of Debt meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (14) of the
definition thereof or is entitled to be incurred pursuant to the first paragraph
of this Section 10.06 (other than debt outstanding under the Credit Facilities
on the date on which the Notes are first issued under this Indenture, which
shall be treated as incurred pursuant to clause (1) of the definition of
Permitted Debt), the Company shall classify (and subsequently may reclassify one
or more times) such Debt in its sole discretion, and such item of Debt will,
upon such classification or reclassification, as the case may be, be treated as
having been incurred pursuant to only one of such clauses or pursuant to the
first paragraph of this Section 10.06. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional Debt, in
each case in accordance with the terms of the underlying Debt at its time of
incurrence by the Company or a Restricted Subsidiary, as the case may be, will
not be deemed to be an incurrence of Debt for purposes of this Section 10.06;
PROVIDED that the underlying Debt is incurred in accordance with the terms of
this Indenture. Any increase in the Canadian dollar equivalent of outstanding
Debt of the Company or any of its Restricted Subsidiaries denominated in a
currency other than Canadian dollars resulting from fluctuations in the exchange
values of currencies shall not be deemed to be an incurrence of Debt for
purposes of this Section 10.06; PROVIDED that the amount of Debt of the Company
outstanding at any time shall be the Canadian dollar equivalent of all such Debt
of the Company outstanding at such time.
SECTION 10.07 LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall
not make, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, make, any Restricted Payment, unless:
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(1) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(2) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur US$1.00 of additional Debt
(other than Permitted Debt) pursuant to Section 10.06 hereof; and
(3) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made after August 14, 2001 does not exceed the sum, (without
duplication), of:
(A) the sum of (x) 50% of the Company's cumulative
Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) for the
period beginning July 1, 2001 and ending on the last day of
the fiscal quarter immediately preceding the date of such
proposed Restricted Payment (treating such period as a single
accounting period), and (y) the Pacifica Income Adjustment
Amount; PLUS
(B) 100% of the aggregate net cash proceeds received
by the Company from Capital Contributions or from the issuance
or sale after August 14, 2001 (other than to a Restricted
Subsidiary) of (x) Capital Stock (other than Disqualified
Capital Stock) of the Company or (y) any Debt or other
securities of the Company that are convertible into or
exercisable or exchangeable for Capital Stock (other than
Disqualified Capital Stock) of the Company which have been so
converted, exercised or exchanged, as the case may be; PLUS
(C) without duplication of any amounts included in
subclause (A) of this clause (3), so long as the Designation
thereof was treated as a Restricted Payment made after August
14, 2001, with respect to any Unrestricted Subsidiary that has
been redesignated as a Restricted Subsidiary after August 14,
2001 in accordance with the definition of "Restricted
Subsidiary," the Company's proportionate interest in an amount
equal to the Fair Market Value of the Company's interest in
such Subsidiary; PROVIDED that such amount shall not in any
case exceed the Designation Amount with respect to such
Restricted Subsidiary at the time of its Designation; PLUS
(D) in the case of the disposition or repayment of
any Investment constituting a Restricted Payment made after
August 14, 2001, to the extent not otherwise included in the
Company's Consolidated Net Income, the amount of cash proceeds
(or Cash Equivalents) received by the Company or any
Restricted Subsidiary with respect to such Investment, net of
any costs of disposition and taxes paid or payable in
connection with such disposition or repayment; PLUS
(E) to the extent not otherwise included in the
Company's Consolidated Net Income, the amount of the cash
proceeds (or Cash Equivalents) received by the Company or any
Restricted Subsidiary upon the sale of any
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Unrestricted Subsidiary after August 14, 2001, net of any
costs of disposition and taxes paid or payable in connection
with such sale; PLUS
(F) $40,000,000.
For purposes of determining the amount expended for
Restricted Payments under this clause (3), property other than
cash shall be valued at its Fair Market Value.
(b) The provisions of this Section 10.07 shall not prevent,
(1) the payment of any dividend or distribution within 60 days
after the date of declaration thereof, if at such date of declaration
such payment would comply with the provisions of this Indenture;
(2) the repurchase, redemption or other acquisition or
retirement of any shares of Capital Stock of the Company or Debt of the
Company or any Guarantor subordinated to the Notes or such Guarantor's
Guarantee, as the case may be, by conversion into, or by or in exchange
for, shares of Capital Stock of the Company (other than Disqualified
Capital Stock), or out of the net cash proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company)
of other shares of Capital Stock of the Company (other than
Disqualified Capital Stock); PROVIDED that any such net cash proceeds
are excluded from Section 10.07(a)(3)(B) for the purposes of this
calculation (and were not included in Section 10.07(a)(3)(B) at any
time);
(3) the redemption, repayment or retirement of Debt of the
Company or any Guarantor subordinated to the Notes or such Guarantor's
Guarantee, as the case may be, in exchange for, by conversion into, or
out of the net cash proceeds of, (x) a substantially concurrent sale or
incurrence of Debt of the Company or such Guarantor, as the case may be
(other than any Debt owed to a Restricted Subsidiary), that is
contractually subordinated in right of payment to the Notes or such
Guarantor's Guarantee, as the case may be, to at least the same extent
as the Debt being redeemed, repaid or retired, or (y) a substantially
concurrent sale (other than to a Restricted Subsidiary of the Company)
of shares of Capital Stock of the Company; PROVIDED that any such net
cash proceeds are excluded from Section 10.07(a)(3)(B) (and were not
included therein at any time);
(4) the retirement of any shares of Disqualified Capital Stock
of the Company by conversion into, or by exchange for, other shares of
Disqualified Capital Stock of the Company, or out of the net cash
proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of other shares of Disqualified
Capital Stock of the Company; PROVIDED that any such net cash proceeds
are excluded from Section 10.07(a)(3)(B) (and were not included in
Section 10.07(a)(3)(B)at any time);
(5) the purchase, redemption or other acquisition for value of
shares of Capital Stock of the Company (other than Disqualified Capital
Stock) held by employees or directors of the Company (or their estates
or beneficiaries under their estates) upon the
99
death, retirement or termination of employment or directorship of such
employees or directors pursuant to or in accordance with the terms of
an employee benefit plan or other agreement approved by the Board of
Directors of the Company; PROVIDED that the aggregate cash
consideration paid, or distributions made, pursuant to this clause (5)
do not exceed $5,000,000 in the aggregate subsequent to August 14,
2001;
(6) the payment of any dividend in respect of shares of the
Company's Capital Stock, PROVIDED that (A) the aggregate amount of all
such dividends paid pursuant to this clause (6) in any twelve-month
period shall not exceed $25,000,000 and (B) immediately after giving
pro forma effect to such payment, the Company could incur US$1.00 of
additional Debt, other than Permitted Debt, under Section 10.06 hereof;
and
(7) the repurchase of shares of the Company's Capital Stock
deemed to occur upon the exercise of stock options if such shares of
Capital Stock represent a portion of the exercise price of such stock
options.
In calculating the aggregate amount of Restricted Payments
made subsequent to August 14, 2001 for purposes of Section 10.07(a)(3),
amounts expended pursuant to clauses (b)(1) and (b)(5) of this Section
10.07 shall be included in such calculation and amounts expended
pursuant to clauses (b)(2), (b)(3), (b)(4), (b)(6) and (b)(7) of this
Section 10.07 shall not be included in such calculation; PROVIDED that
amounts expended pursuant to clause (b)(1) of this Section 10.07 will
only be included if the declaration thereof had not been counted in a
prior period.
SECTION 10.08 LIMITATION ON LIENS. The Company shall not, and shall not
cause or permit any of its Restricted Subsidiaries, directly or indirectly, to,
create, incur or otherwise cause or suffer to exist or become effective any
Liens (other than Permitted Liens) upon or with respect to any property or
assets of the Company or any of its Restricted Subsidiaries, unless:
(i) if such Lien secures Debt which is ranked equally and
ratably with the Notes or any Guarantee, then the Notes or such
Guarantee, as the case may be, are secured on an equal and ratable
basis with the obligations so secured until such time as such
obligations are no longer secured by such Lien or the Lien is a
Permitted Lien, or
(ii) if such Lien secures Debt which is subordinated to the
Notes or any Guarantee, then the Notes or such Guarantee, as the case
may be, are secured and the Lien securing such other Debt shall be
subordinated to the Lien granted to the Holders of the Notes or such
Guarantee, as the case may be, at least to the same extent as such Debt
is subordinated to the Notes or such Guarantee, as the case may be,
until such time as such obligations are no longer secured by a Lien.
The Company and Restricted Subsidiaries may create, incur or
cause or permit to exist Permitted Liens as described in the definition
of "Permitted Liens" of this Indenture.
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SECTION 10.09 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (each an "Affiliate Transaction") or extend, renew,
waive or otherwise modify the terms of any Affiliate Transaction entered into
prior to the Issue Date, unless:
(1) such Affiliate Transaction is between or among the Company
and its Restricted Subsidiaries or between or among Restricted
Subsidiaries; or
(2) the terms of such Affiliate Transaction are no less
favorable to the Company or such Restricted Subsidiary, as the case may
be, than the terms which could reasonably be obtained by the Company or
such Restricted Subsidiary, as the case may be, at such time in a
comparable transaction made on an arm's-length basis between
unaffiliated parties.
In any Affiliate Transaction (or any series of related Affiliate
Transactions) involving an amount or having a Fair Market Value in excess of
$10,000,000 which is not permitted under clause (a)(1) of this Section 10.09,
the Company shall obtain a resolution of the disinterested members of the Board
of Directors of the Company certifying that they have approved such Affiliate
Transaction and determined that such Affiliate Transaction complies with clause
(a)(2) of this Section 10.09.
In addition, in any Affiliate Transaction (or any series of related
Affiliate Transactions) involving an amount or having a Fair Market Value in
excess of $75,000,000 which is not permitted under clause (a)(1) of this Section
10.09, the Company must obtain a written opinion from an Independent Financial
Advisor that such transaction or transactions are fair to the Company or such
Restricted Subsidiary, as the case may be, from a financial point of view.
(b) The provisions of Section 10.09(a) will not apply to,
(1) any Restricted Payment made in compliance with Section 10.07
hereof,
(2) any payment of customary and reasonable fees to directors of the
Company,
(3) any employment agreement or compensation arrangement in effect on
the Issue Date, or entered into thereafter by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company and its Restricted Subsidiaries,
(4) transactions in the ordinary course of business pursuant to any
pension, share or partnership unit option, profit sharing, partnership unit or
share appreciation rights or other employee benefit plan or agreement (including
insurance,
101
indemnification and reimbursement plans and arrangements for directors, officers
and employees),
(5) loans to employees not to exceed $10,000,000 in aggregate
amount at any one time outstanding, or
(6) issuances of Capital Stock (other than Disqualified
Capital Stock) of the Company.
SECTION 10.10 LIMITATION ON ASSET SALES.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, complete an Asset Sale unless:
(1) the Company or such applicable Restricted Subsidiary, as
the case may be, receives consideration at the time of such sale or
other disposition at least equal to the Fair Market Value of the assets
sold or otherwise disposed of;
(2) not less than 75% of the consideration received by the
Company or such applicable Restricted Subsidiary, as the case may be,
is in the form of (A) cash or Cash Equivalents, or (B) Replacement
Assets, and in each case set forth in subclauses (A) and (B) of this
clause (a)(2), is received at the time of such sale or other
disposition; PROVIDED that the amount of (i) any Debt (other than
subordinated Debt) of the Company or any such applicable Restricted
Subsidiary that is actually assumed by the transferee in such Asset
Sale and from which the Company and its Restricted Subsidiaries are
fully and unconditionally released and (ii) any securities received by
the Company or any such applicable Restricted Subsidiary which are
converted into cash or Cash Equivalents within ten Business Days of
such Asset Sale (to the extent of the cash or Cash Equivalents
received), will be deemed to be cash for purposes of this clause (a)(2)
and to have been received at the time of such sale; and
(3) the Asset Sale Proceeds received by the Company or such
Restricted Subsidiary, as the case may be, are applied, at the option
of the Company or such Restricted Subsidiary, (A) to prepay, repay or
purchase indebtedness under the Credit Facilities or any other secured
Debt of the Company or such Restricted Subsidiary or the Other Senior
Notes; or (B) to an investment in properties and assets that are used
or are useful in the business of the Company or its Restricted
Subsidiaries or in businesses reasonably similar to or ancillary to the
business of the Company or its Restricted Subsidiaries as conducted at
the time of such Asset Sale; PROVIDED that (i) such investment occurs
or (ii) the Company or any such Restricted Subsidiary enters into
contractual commitments to so apply such Asset Sale Proceeds, subject
only to customary conditions (other than the obtaining of financing),
in each case, within 365 days following the receipt of such Asset Sale
Proceeds.
If on such 365th day the Available Asset Sale Proceeds exceed
$15,000,000, the Company shall apply an amount equal to the Available
Asset Sale Proceeds to an offer to repurchase the Notes (and, at its
option, to an offer to repurchase other equal and ratable Debt), at a
purchase price in cash equal to 100% of the principal
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amount thereof plus accrued and unpaid interest, if any, to the
purchase date (an "Excess Proceeds Offer").
If an Excess Proceeds Offer is not fully subscribed, the
Company may retain and use for general corporate purposes the portion
(any such portion, a "Deficiency") of the Available Asset Sale Proceeds
not required to repurchase Notes. Upon completion of any Excess
Proceeds Offer, the amount of Available Asset Sale Proceeds shall be
reset to zero.
(b) If the Company is required to make an Excess Proceeds Offer, the
Company shall (1) notify the Trustee thereof at least five Business Days prior
to the commencement of the Excess Proceeds Offer and (2) send by first-class
mail, postage prepaid, within 30 days of the 365th day following the receipt of
the Available Asset Sale Proceeds exceeding $15,000,000 as specified in Section
10.10(a)(3), a notice to the Trustee and to each Holder, at the address
appearing in the register maintained by the Security Registrar, stating the
information set forth below. The Excess Proceeds Offer shall remain open for a
period of 20 Business Days following its commencement (the "Offer Period"). The
notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(A) that the Company is offering to apply the Available
Asset Sale Proceeds, to repurchase such Notes at a
purchase price in cash equal to 100% of the principal
amount of the Notes, plus accrued and unpaid
interest, if any, to the purchase date;
(B) that the Excess Proceeds Offer is being made pursuant
to this Section 10.10 and the length of time the
Excess Proceeds Offer will remain open;
(C) the purchase price and the purchase date (which shall
be a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed);
(D) that any Note not tendered or accepted for payment
will continue to accrue interest;
(E) that, unless the Company defaults in a payment
pursuant to the Excess Proceeds Offer, any Notes
accepted for payment pursuant to the Excess Proceeds
Offer shall cease to accrue interest after the
expiration of the Offer Period;
(F) that Holders accepting the offer to have a Note
purchased pursuant to any Excess Proceeds Offer will
be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the
close of business on the Business Day preceding the
purchase date;
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(G) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than
the expiration of the Offer Period, facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note
purchased;
(H) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset
Sale Proceeds, the Company or the Trustee shall
select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate
by the Company so that only Notes in denominations of
US$1,000, or integral multiples of US$1,000, shall be
purchased);
(I) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in aggregate
principal amount to the unpurchased portion of the
Notes surrendered; PROVIDED that each Note purchased
and each such new Note issued shall be in an original
principal amount in denominations of US$1,000 and
integral multiples of US$1,000; and
J) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the
purchase of such Notes.
The Company shall 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 the
repurchase of Notes in connection with an Excess Proceeds Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 10.10, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 10.10 by virtue thereof.
SECTION 10.11 LIMITATION ON CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not (a) sell, pledge, hypothecate (other than by Permitted
Liens) or otherwise convey or dispose of any Capital Stock of a Restricted
Subsidiary or (b) permit any of its Restricted Subsidiaries to issue any Capital
Stock, other than to the Company or a Wholly Owned Restricted Subsidiary if, as
a result of such transaction, such Restricted Subsidiary would cease to be a
Restricted Subsidiary. The foregoing restrictions shall not apply to an Asset
Sale consisting of all of the Capital Stock of a Restricted Subsidiary owned by
the Company and its Restricted Subsidiaries made in compliance with Section
10.10 hereof.
SECTION 10.12 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES. The Company shall not, and shall not cause or
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to:
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(a) (1) pay dividends or make any other distributions to the Company or
any Restricted Subsidiary (A) on its Capital Stock or (B) with respect to any
other interest or participation in, or measured by, its profits or (2) repay any
Debt or any other obligation owed to the Company or any Restricted Subsidiary,
(b) make loans or advances or Capital Contributions to the Company or
any Restricted Subsidiary, or
(c) transfer any of its properties or assets to the Company or any
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (1) encumbrances or restrictions existing on the Issue
Date to the extent and in the manner such encumbrances and restrictions are in
effect on the Issue Date, (2) encumbrances or restrictions in the Credit
Facilities, (3) this Indenture, the Notes and any Guarantees, (4) applicable
law, (5) any instrument governing Acquired Debt as in effect at the time of such
acquisition, 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 (including any Subsidiary of the Person), so acquired,
(6) customary non-assignment provisions in leases or other agreements entered in
the ordinary course of business and consistent with past practices, (7)
Refinancing Debt; PROVIDED that such restrictions are not on the whole
materially more restrictive than those contained in the agreements governing the
Debt being extended, refinanced, renewed, replaced, defeased or refunded, (8)
restrictions in security agreements or mortgages securing Debt of the Company or
a Restricted Subsidiary only to the extent such restrictions restrict the
transfer of the property subject to such security agreements and mortgages, (9)
restrictions with respect to a Restricted Subsidiary pursuant to an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary to be
consummated in accordance with the terms of this Indenture solely in respect of
the Capital Stock or assets to be sold or disposed of, (10) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (c)(8) of this Section 10.12 on
the property so acquired, (11) any agreement for the sale of assets (including
any Asset Sale) that restricts transfers of such assets pending their sale, (12)
secured Debt otherwise permitted to be incurred pursuant to the provisions of
the covenant described above under Section 10.08 that limits the right of the
debtor to dispose of the assets securing such Debt, (13) any encumbrance or
restriction contained in Purchase Money Debt to the extent that such encumbrance
or restriction (A) only restricts the transfer of the Property financed with
such Purchase Money Debt and (B) solely relates to the Property financed with
such Purchase Money Debt, or (14) restrictions on cash or other deposits imposed
by customers under contracts entered into in the ordinary course of business.
SECTION 10.13 LIMITATION ON SUBSIDIARIES. If (a) any Subsidiary
guarantees the Other Senior Notes or (b) the Company or any Restricted
Subsidiary transfers or causes to be transferred any Property to, or organizes,
acquires, invests in or otherwise holds an Investment in, any Restricted
Subsidiary that is not a Guarantor having total consolidated assets with a book
value in excess of $500,000, then such Subsidiary, transferee or acquired or
other Restricted Subsidiary shall (1) execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall
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unconditionally guarantee all of the Company's obligations under the Notes and
this Indenture in the form set forth in Annex C hereto, (2) deliver to the
Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Restricted Subsidiary and constitutes
a legal, valid, binding and enforceable obligation of such Restricted Subsidiary
and (3) execute such other documents and take such other actions as the Trustee
may reasonably require in order to evidence the Guarantee of such Restricted
Subsidiary and the agreement of such Restricted Subsidiary to be bound by the
Guarantee. Thereafter, such Restricted Subsidiary shall be a Guarantor for all
purposes of this Indenture.
SECTION 10.14 LEGAL EXISTENCE. Subject to Article Five hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its legal existence, and the corporate, partnership or
other existence of each Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; PROVIDED 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 Restricted
Subsidiaries if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.
SECTION 10.15 CHANGE OF CONTROL OFFER.
(a) Upon the occurrence of a Change of Control Triggering Event, the
Company shall be obligated to make an offer to purchase (the "Change of Control
Offer") all outstanding Notes at a purchase price (the "Change of Control
Purchase Price") equal to 101% of the principal amount thereof, plus accrued and
unpaid interest to the Change of Control Payment Date, in accordance with this
Section 10.15.
(b) Within 30 days of the occurrence of a Change of Control Triggering
Event, the Company shall (1) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Xxxxx News Service or similar business news
service in the United States and (2) send by first-class mail, postage prepaid,
to the Trustee and to each Holder, at the address appearing in the register of
the Notes maintained by the Security Registrar, a notice stating:
(A) that the Change of Control Offer is being made
pursuant to this Section 10.15 and that all Notes
tendered will be accepted for payment;
(B) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such
notice is mailed (the "Change of Control Payment
Date"));
(C) that any Note not tendered will continue to accrue
interest;
(D) that, unless the Company defaults in the payment of
the Change of Control Purchase Price, any Notes
accepted for payment pursuant
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to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(E) that Holders accepting the offer to have a Note
purchased pursuant to any Change of Control Offer
will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the
close of business on the Business Day preceding the
Change of Control Payment Date;
(F) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than
the close of business on the third Business Day
preceding the Change of Control Payment Date,
facsimile transmission or letter setting forth the
name of the Holder, the 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;
(G) that Holders whose Notes are being purchased only in
part will be issued new Notes, representing the same
indebtedness to the extent not repurchased, equal in
principal amount to the unpurchased portion of the
Notes surrendered; PROVIDED that each Note purchased
and each such new Note issued shall be in an original
principal amount in denominations of US$1,000 and
integral multiples of US$1,000;
(H) any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal
of such acceptance; and
(I) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent money sufficient to pay the Change of Control Purchase Price of all Notes
or portions thereof so properly tendered and (3) deliver or cause to be
delivered to the Trustee Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each Holder of Notes so accepted payment in
an amount equal to the Change of Control Purchase Price for such Notes, and the
Company shall execute and issue, and the Trustee shall promptly authenticate and
mail to such Holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; PROVIDED that each such new Note shall be
issued in an original principal amount in denominations of US$1,000 and integral
multiples of US$1,000.
(d) (1) If the Company or any Restricted Subsidiary has issued any
outstanding (A) Debt that is subordinated in right of payment to the Notes or
(B) Preferred Stock, and the Company or such Restricted Subsidiary is required
to make a Change of Control
107
Offer or to make a distribution with respect to such subordinated Debt or
Preferred Stock in the event of a Change of Control, the Company shall not
consummate any such offer or distribution with respect to such subordinated Debt
or Preferred Stock until such time as the Company shall have paid the Change of
Control Purchase Price in full to the Holders of Notes that have accepted the
Company's Change of Control Offer and shall otherwise have consummated the
Change of Control Offer made to Holders of the Notes and (2) the Company shall
not issue Debt that is subordinated in right of payment to the Notes or
Preferred Stock with Change of Control provisions requiring the payment of such
Debt or Preferred Stock prior to the payment of the Notes in the event of a
Change of Control Triggering Event under this Indenture.
The Company shall 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 the
repurchase of Notes in connection with a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 10.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 10.15 by virtue thereof.
SECTION 10.16 PAYMENT OF ADDITIONAL AMOUNTS.
(a) All amounts paid or credited by the Company under or with respect
to the Notes, or by any Guarantor in respect of its Guarantee shall be made free
and clear of and without withholding or deduction for or on account of any
present or future Taxes, unless the Company or such Guarantor is required to
withhold or deduct any amount for or on account of Taxes by law or by
interpretation or administration of law. If the Company or any Guarantor is
required to withhold or deduct any amount for or on account of Taxes from any
amount paid or credited under or with respect to the Notes or the Guarantees,
the Company or such Guarantor shall pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by each Holder
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of Additional Amounts) shall not be less
than the amount the Holder would have received if such Taxes had not been
withheld or deducted; PROVIDED that no Additional Amounts will be payable with
respect to a payment made to a Holder (an "Excluded Holder") (1) with whom the
Company or such Guarantor does not deal at arm's length (within the meaning of
the Income Tax Act (Canada)) at the time of making such payment, (2) who is
subject to the Taxes in question by reason of its being connected with the
jurisdiction imposing such Taxes otherwise than by the mere acquisition or
holding of the Notes or the receipt of payments thereunder or the enforcement of
its rights thereunder, or (3) who is subject to such Taxes because the Holder is
or is deemed to be resident in Canada or uses or holds or is deemed or
considered to use or hold the Notes in carrying on business in Canada for
purposes of the Income Tax Act (Canada). The Company and any Guarantors will
also (a) make such withholding or deduction and (b) remit the full amount
deducted or withheld to the relevant authority in accordance with and in the
time required under applicable law. The Company and any Guarantors shall furnish
to the Holders (other than Excluded Holders) of Notes that are outstanding on
the date of the withholding or deduction, within 30 days after the date of the
payment of any Taxes due under applicable law, certified copies of tax receipts
evidencing such payment by the Company or such Guarantor.
108
(b) The Company and any Guarantors shall, upon written request of any
Holder (other than an Excluded Holder), reimburse each such Holder, for the
amount of (1) any such Taxes so required to be withheld or deducted which are
levied or imposed on and paid by such Holder or the beneficial owner of the
Notes as a result of payments made under or with respect to the Notes or the
Guarantees and reasonable expenses related thereto; and (2) any such Taxes so
levied or imposed with respect to any reimbursement under the foregoing clause
(1) so that the net amount received by such Holder or beneficial owner after
such reimbursement will not be less than the net amount the Holder or beneficial
owner would have received if Taxes described in subclauses (1) and (2) of this
paragraph had not been imposed, but excluding any such Taxes on such Holder's or
beneficial owner's net income generally.
(c) 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
shall be obligated to pay Additional Amounts with respect to such payment, the
Company or such Guarantor shall deliver to the Trustee an Officers' Certificate
stating the fact that such Additional Amounts shall be payable and specifying
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. Whenever in this Indenture there is mentioned, in any context, principal,
premium, if any, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
(d) The Company or any Guarantor shall pay any present or future stamp,
court, documentary or other similar taxes, charges or levies that arise in any
Taxing Jurisdiction from the execution, delivery or registration of, or
enforcement of rights under the Notes, this Indenture or any related document.
SECTION 10.17 LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS IF THE
NOTES ARE RATED INVESTMENT GRADE. Notwithstanding any other provision of this
Indenture, in the event that (a) the Notes are rated Investment Grade and (b) no
Event of Default or Default shall have occurred and be continuing (the
satisfaction of the foregoing requirements being collectively referred to as the
"Fall-away Event"), upon the delivery to the Trustee of an Officers' Certificate
to the effect that a Fall-away Event has occurred, the provisions of Sections
10.06, 10.07, 10.09, 10.10, 10.12, 10.15 and clause (a)(3) of Section 8.01 of
this Indenture shall terminate and shall thereafter be deemed not to form a part
of this Indenture and the Company and its Restricted Subsidiaries shall
thereafter have no obligation or liability in respect of such sections,
notwithstanding that the Notes may later cease to be rated Investment Grade.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 ELECTION TO REDEEM; NOTICES TO TRUSTEE. If the Company
elects to redeem Notes pursuant to Section 11.07 or 11.08 of this Indenture, at
least 45 days prior to the Redemption Date (unless a shorter notice shall be
agreed to in writing by the Trustee) but not more than 65 days before the
Redemption Date, the Company shall notify the Trustee in writing of the
Redemption Date, the aggregate principal amount of Notes to be redeemed and the
109
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in Section 11.07
or 11.08 of this Indenture. Notice given to the Trustee pursuant to this Section
11.01 may not be revoked after the time that notice is given to Holders pursuant
to Section 11.03 hereof.
SECTION 11.02 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. In the
event that fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed, if the Notes are listed on a national
securities exchange, in accordance with the rules of such exchange or, if the
Notes are not so listed, either on a PRO RATA basis, by lot or in such other
manner as the Trustee shall deem fair and equitable; PROVIDED, HOWEVER, that if
a partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portions thereof for redemption shall be made by the
Trustee only on a PRO RATA basis or on as nearly a PRO RATA basis as is
practicable (subject to DTC procedures), unless such method is otherwise
prohibited. The Trustee shall promptly notify the Company of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. The Trustee may select for
redemption portions of the principal of the Notes that have denominations larger
than US$1,000. Notes and portions thereof the Trustee selects shall be redeemed
in amounts of US$1,000 or whole multiples of US$1,000. For all purposes of this
Indenture unless the context otherwise requires, provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 11.03 NOTICE OF REDEMPTION. At least 30 days, and no more than
60 days, before a Redemption Date, the Company shall mail, or cause to be
mailed, a notice of redemption by first-class mail to each Holder of Notes to be
redeemed at his or her last address as the same appears on the registry books
maintained by the Security Registrar.
(b) The notice shall identify the Notes to be redeemed (including the
CUSIP or ISIN numbers thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium, if any,
and accrued and unpaid interest to be paid;
(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 and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(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 the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date;
110
(7) the provision of this Indenture pursuant to which the
Notes called for redemption are being redeemed;
(8) the aggregate principal amount of Notes that are being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Notes.
(c) At the Company's written request made at least two Business Days
prior to the date on which notice is to be given, the Trustee shall give the
notice of redemption in the Company's name and at the Company's sole expense;
PROVIDED, HOWEVER, that the Company shall deliver to the Trustee at least 45
days prior to the Redemption Date 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 11.04 EFFECT OF NOTICE OF REDEMPTION. Once the notice of
redemption described in Section 11.03 hereof is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price, including premium, if any, plus accrued and unpaid interest to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price, including premium, if any, plus accrued and unpaid
interest to the Redemption Date; PROVIDED that if the Redemption Date is after a
regular record date and on or prior to the Interest Payment Date, the accrued
interest shall be payable to the Holder of the redeemed Notes registered on the
relevant record date; PROVIDED, FURTHER, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 11.05 DEPOSIT OF REDEMPTION PRICE. (a) On or prior to 10:00
a.m., New York City time, on each Redemption Date, the Company shall deposit
with the Paying Agent in immediately available funds money sufficient to pay the
redemption price of, including premium, if any, and accrued and unpaid interest
on all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
(b) On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued and unpaid interest
on Notes called for redemption shall have been deposited with the Paying Agent
in accordance with the preceding paragraph, the Notes called for redemption will
cease to accrue interest and the only right of the Holders of such Notes will be
to receive payment of the redemption price of, premium, if any, and, subject to
the first proviso in Section 11.04 hereof, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note surrendered for redemption shall not
be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
SECTION 11.06 NOTES REDEEMED IN PART. Any Note which is to be redeemed
only in part shall be surrendered at an office or agency of the Company
designated for that
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purpose pursuant to Section 11.03 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate stated amount at maturity
equal to and in exchange for the unredeemed portion of the stated amount at
maturity of the Security so surrendered.
SECTION 11.07 OPTIONAL REDEMPTION. The Company, at its option, may
redeem the Notes, in whole at any time, or in part from time to time, in each
case, on or after March 1, 2009, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount
thereof) set forth below, together, in each case, with accrued and unpaid
interest to the Redemption Date, if redeemed during the twelve month period
beginning on March 1 of each year listed below:
YEAR REDEMPTION PRICE
---- ----------------
2009...................................... 103.688%
2010...................................... 102.458%
2011...................................... 101.229%
2012 and thereafter....................... 100.000%
Notwithstanding the foregoing, the Company, at its option, may redeem
in the aggregate up to 35% of the original principal amount of Notes at any time
and from time to time prior to March 1, 2007 at a redemption price equal to
107.375% of the aggregate principal amount so redeemed, plus accrued and unpaid
interest to the Redemption Date, out of the net cash proceeds of one or more
Public Equity Offerings of Common Stock of the Company; PROVIDED that at least
65% of the aggregate principal amount of Exchange Securities and any Notes that
have not been exchanged for Exchange Securities remains outstanding immediately
after the occurrence of any such redemption and that any such redemption occurs
within 90 days following the closing of any such Public Equity Offering.
SECTION 11.08 TAX REDEMPTION. (a) The Notes are redeemable, in whole
but not in part, at the option of the Company at any time, upon not less than 30
nor more than 60 calendar days' prior written notice, mailed by first class mail
to each Holder at its last address appearing in the register of Notes maintained
by the Security Registrar, at 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to the Redemption Date, if the Company or any
Guarantor is or would become obligated to pay, on the next date on which any
amount would be payable with respect to the Notes or the Guarantees, any
Additional Amounts as a result of a change in, or amendment to, the laws (or any
regulations promulgated thereunder) of any Taxing Authority, or any changes in,
or amendment to, any official position regarding the application or
interpretation of such laws or regulations, which change or amendment is
announced on or after the Issue Date; PROVIDED that the Company or such
Guarantor determines, in its business judgment, that the obligation to pay such
Additional Amounts cannot be avoided by the use of reasonable measures available
to the Company or such Guarantor (not including substitution of the obligor
under the Notes); and PROVIDED, FURTHER, that (1) no such notice of redemption
may be given earlier than 90 days prior to the earliest date on which the
Company or
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such Guarantor would but for such redemption be obligated to pay such Additional
Amounts or later than 270 days after the Company or such Guarantor first becomes
liable to pay any Additional Amounts as a result of any changes in or amendments
to laws, regulations or official positions described above and (2) at the time
such notice is given, the Company's or such Guarantor's obligation to pay such
Additional Amounts remains in effect.
(b) Prior to the publication of any notice of redemption pursuant to
this provision, the Company will deliver to the Trustee (1) an Officers'
Certificate stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right of the Company so to redeem have occurred and (2) an Opinion of Counsel
qualified under the laws of the relevant jurisdiction to the effect that the
Company or such Guarantor has or will become obligated to pay such Additional
Amounts as a result of such amendment or change as described above.
SECTION 11.09 PURCHASE OF NOTES. The Company or any of its Subsidiaries
shall have the right at any time and from time to time to purchase Notes in the
open market (which shall include purchase from or through an investment dealer,
investment bank or firm holding membership in a stock exchange or the National
Association of Securities Dealers, Inc.) or by tender or by private contract or
otherwise, at any price, PROVIDED that the Company complies with any securities
laws or regulations applicable to any such purchase including, but not limited
to Rule 14e-1 under the Exchange Act.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. The Company may at its option by Board Resolution, at any time,
elect to have either Section 12.02 or Section 12.03 applied to the Notes then
outstanding upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.02 DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the option provided in Section 12.01 applicable to this Section, the Company
shall be deemed to have been discharged from its obligations with respect to the
Notes on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Notes and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 12.04 and as more fully
set forth in such Section, payments in respect of the principal amount of,
premium, if any and interest on such Securities when such payments are due, (ii)
the Company's obligations with respect to such Securities under Sections 3.05,
3.06, 5.15, 10.02 and 10.16, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder (including, claims of, or payments to the
Trustee under Section 6.07 hereof) and (iv) this Article Twelve. Subject to
113
compliance with this Article Twelve, the Company may exercise its option under
this Section 12.02 notwithstanding the prior exercise of its option under
Section 12.03.
SECTION 12.03 COVENANT DEFEASANCE. Upon the Company's exercise of the
option provided in Section 12.01 applicable to this Section, (a) the Company
shall be released from its obligations under clauses (3), (4), (5), (6), (7) and
(8) of Section 5.01(a), Section 5.15, Section 8.01(a)(3), Sections 10.04 through
10.15, inclusive, and Section 10.17 (b) the occurrence of an event specified in
Sections 5.01(a)(3) (with respect to clauses (3), (4), (5), (6), (7) or (8) of
Section 5.01(a), Section 5.15, Section 8.01(a)(3), Sections 10.04 through 10.15,
inclusive, and Section 10.17), 5.01(a)(4), 5.01(a)(5), 5.01(a)(6) and 5.01(a)(7)
shall not be deemed to be an Event of Default (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, clause or Article or by reason of any reference in any such
Section, clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 12.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
(a) The following shall be the conditions to application of either
Section 12.02 or Section 12.03 to the then outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Securities which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the principal
of, premium, if any, and accrued and unpaid interest on the Notes, at
the Maturity Date of such principal, premium, if any, or interest, or
on dates for payment and redemption of such principal, premium, if any,
and interest selected in accordance with the terms of this Indenture
and the Notes; PROVIDED that the Trustee shall have been irrevocably
instructed in writing to apply such money or the proceeds of such U.S.
Government Securities to the payment of such principal, premium, if
any, and interest with respect to the Notes;
(2) In the case of an election under Section 12.02, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that:
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(A) the Company has received from, or there has been
published by, the Internal Revenue Service or Canada Customs
and Revenue Agency a ruling, or
(B) the applicable U.S. Federal or Canadian income
tax law provides or since the date of this Indenture there has
been a change in the applicable U.S. or Canadian federal
income tax law,
in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Notes will not
recognize income gain or loss for U.S. or Canadian federal
income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to U.S. or Canadian federal
income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit,
defeasance and discharge had not occurred;
(3) In the case of an election under Section 12.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Notes will not recognize income gain
or loss for U.S. or Canadian federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to U.S. or
Canadian federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit and
covenant defeasance had not occurred;
(4) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as Section
5.01(a)(6) and (7) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period);
(5) The Company shall have delivered to the Trustee an Opinion
of Counsel substantially to the effect that, after the passage of 123
days following the deposit (except, with respect to any trust funds for
the account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following
the deposit), the trust funds will not be subject to the effect of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute;
(6) Such deposit, defeasance or covenant defeasance and
discharge shall not result in a breach or violation of, or constitute a
default under, any other material agreement or instrument to which the
Company or any Restricted Subsidiary is a party or by which the Company
or any Restricted Subsidiary is bound;
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) of this
Section 12.04 was not made by the Company with the intent of preferring
the Holders of the Notes over any other
115
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
and
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 12.02 or the covenant defeasance under Section 12.03 (as
the case may be) have been complied with.
SECTION 12.05 DEPOSITED MONEY AND U.S. GOVERNMENT SECURITIES TO BE HELD
IN TRUST: OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to the provisions of Section 12.03, all money and U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively, for purposes of this Section
12.05, the "Trustee") pursuant to Section 12.04 in respect of the Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities 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 Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
(b) The Company and any Guarantors shall (on a joint and several basis)
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Securities deposited pursuant to Section
12.04 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
Notes.
(c) Anything in this Article Twelve to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Securities held by it as provided in
Section 12.04 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 which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 12.06 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 12.02 or 12.03 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
each Guarantor's obligations under this Indenture, the Notes and the Guarantees,
as the case may be, shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Twelve until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
12.02 or 12.03; PROVIDED that if the Company or any Guarantors have made any
payment of principal of, premium, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Company or such
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or U.S. Government
Securities, as the case may be, held by the Trustee or Paying Agent.
116
ARTICLE XIII
GUARANTEE OF NOTES
SECTION 13.01 GUARANTEE. (a) Subject to the provisions of this Article
Thirteen each Guarantor hereby jointly and severally unconditionally guarantees,
on a senior unsecured basis, to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors, irrespective of
(i) the validity and enforceability of this Indenture, the Notes or the
obligations of the Company or any other Guarantors to the Holders or the Trustee
hereunder or thereunder or (ii) the absence of any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or default of a Guarantor, that: (a) the principal of, premium, if
any, interest and Additional Interest, if any, on and any Additional Amounts, if
any, with respect to the Notes will be duly and punctually paid in full when
due, whether at maturity, by acceleration or otherwise, and interest on the
overdue principal and (to the extent permitted by law) interest or Additional
Interest, if any, on or Additional Amounts, if any, with respect to the Notes
and all other obligations of the Company or any Guarantor to the Holders or the
Trustee hereunder or thereunder (including amounts due the Trustee under Section
6.07 hereof) and all other obligations under this Indenture or the Notes will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, or failing performance of any other obligation
of the Company to the Holders, for whatever reason, each Guarantor will be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes or the Trustee to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extent as the obligations of the
Company.
(b) Each Guarantor, by execution of the Guarantee, agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of this Indenture or the Notes, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor, by execution of the Guarantee, waives
the benefit of diligence, presentment, demand for payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that such Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this Indenture
and such Guarantee. The Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or otherwise
to return to the Company or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or such
Guarantor, any amount paid by the Company or such Guarantor to the Trustee or
such Holder, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
117
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (a) subject to this Article
Thirteen, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five hereof for the purposes of the Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantors for the purpose of such Guarantee.
(c) The Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
SECTION 13.02 EXECUTION AND DELIVERY OF GUARANTEE. (a) To further
evidence the Guarantee set forth in Section 13.01 hereof, each Guarantor hereby
agrees that a notation of such Guarantee, substantially in the form included in
Annex C hereto, shall be endorsed on each Note authenticated and delivered by
the Trustee after this Article Thirteen with respect to such Guarantor becomes
effective in accordance with Section 10.13 hereof and such Guarantee shall be
executed by either manual or facsimile signature of an Officer of each
Guarantor. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
(b) Each of the Guarantors hereby agrees that its Guarantee set forth
in Section 13.01 hereof shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee.
(c) If an Officer of a Guarantor whose signature is on this Indenture
or a Guarantee no longer holds that office at the time the Trustee authenticate
the Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 13.03 LIMITATION OF GUARANTEE. The obligations of each
Guarantor are limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under
118
its Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Guarantor under the Guarantee not constituting
a fraudulent conveyance or fraudulent transfer under federal or state law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the net assets of each Guarantor, determined in accordance with GAAP.
SECTION 13.04 ADDITIONAL GUARANTORS. Any Person may become a Guarantor
by executing and delivering to the Trustee a supplemental indenture in
accordance with Section 10.13 hereof.
SECTION 13.05 RELEASE OF GUARANTOR. (a) A Guarantor shall be released
from all of its obligations under its Guarantee if:
(1) the Guarantor has sold all of its assets or the Company
and its Restricted Subsidiaries have sold all of the Capital Stock of
the Guarantor owned by them, in each case in a transaction in
compliance with the terms of this Indenture (including Sections 10.10
and 8.01 hereof);
(2) the Guarantor merges or amalgamates with or into or
consolidates with, or transfers all or substantially all of its assets
to, the Company or another Guarantor in a transaction in compliance
with Section 8.01 hereof; or
(3) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of this Indenture;
and in each such case, the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
(b) If all of the conditions to release contained in this Section 13.05
have been satisfied, the Trustee shall execute any documents reasonably
requested by the Company or any Guarantor in order to evidence the release of
such Guarantor from its obligations under its Guarantee endorsed on the Notes
and under this Article Thirteen.
SECTION 13.06 WAIVER OF SUBROGATION. Each Guarantor, by execution of
its Guarantee, waives to the extent permitted by law any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under such Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder against the Company, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Notes shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of,
119
the Holders of the Notes, and shall forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this Indenture. Each
Guarantor, by execution of its Guarantee, will acknowledge that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 13.06 is knowingly
made in contemplation of such benefits.
---------------
120
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
ISSUER:
NORSKE XXXX CANADA LIMITED
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
THE GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: President
NORSKE XXXX CANADA (JAPAN) LIMITED
/s/ Xxxxx X. Xxxxxxxx
By: ________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Director
NORSKE XXXX CANADA FINANCE LIMITED
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
121
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA PULP SALES INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA SALES INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA SERVICES
(HUNGARY) LIMITED LIABILITY COMPANY
/s/ Xxx Xxxxx
By: ________________________________
Name: Xxx Xxxxx
Title: Managing Director
NORSKE XXXX CANADA (USA) INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
122
NSCL HOLDINGS INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
PACIFICA PAPERS SALES LTD.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: President
PACIFICA PAPERS SALES INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
PACIFICA POPLARS LTD.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: President
PACIFICA POPLARS INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
123
PACIFICA PAPERS US INC.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKECANADA
by its managing general partner,
Norske Xxxx Canada Limited
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
124
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
as Trustee
/s/ Xxxx X. Xxxxxxxxx
By: ________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
125
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
Xxxxx Fargo Bank, National Association,
As Trustee
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Re: Norske Xxxx Canada Limited
7-3/8% SENIOR NOTES DUE MARCH 1, 2014 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of March
23, 2004 (the "Indenture"), among Norske Xxxx Canada Limited and Xxxxx Fargo
Bank, National Association, as Trustee. Terms used but not defined herein and
defined in Regulation S or in the Indenture shall have the meanings given to
them in Regulation S or the Indenture, as the case may be.
This certificate relates to U.S. $_______________ aggregate
principal amount of Notes, which are evidenced by the following certificate(s)
(the "Specified Securities"):
ISIN No(s)._____________________________________
CERTIFICATE No(s).______________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the U.S. Depositary or an Agent Member in the name of the Undersigned,
as or on behalf of the Owner. If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security or an interest therein. In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, such transfer is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(a) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
A-1
(b) the offer of the Specified Securities was not made to a
person in the United States;
(c) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated by
the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(d) no directed selling efforts in contravention of the
requirements of Rule 904(b) have been made in the United States by or
on behalf of the Owner or any affiliate thereof;
(e) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(f) we have advised the Transferee of the transfer
restrictions applicable to the Notes.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement. You and the Company are each 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.
Dated: ___________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:________________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
A-2
ANNEX B -- Form of
Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
Xxxxx Fargo Bank, National Association,
As Trustee
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Re: Norske Xxxx Canada Limited
7-3/8% SENIOR NOTES DUE MARCH 1, 2014 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of March
23, 2004 (the "Indenture"), among Norske Xxxx Canada Limited and Xxxxx Fargo
Bank, National Association, as Trustee. Terms used but not defined herein and
defined in Rule 144A or in the Indenture shall have the meanings given to them
in Rule 144A or the Indenture, as the case may be.
This certificate relates to U.S. $_______________ aggregate
principal amount of Notes, which are evidenced by the following certificate(s)
(the "Specified Securities"):
CUSIP No(s). _____________________________________
CERTIFICATE No(s).________________________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global Security,
they are held through the U.S. Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security or an interest therein. In connection with such transfer,
the Owner hereby certifies that such transfer is being effected in accordance
with Rule 144A under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as:
(a) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe
is a "qualified
B-1
institutional buyer" within the meaning of Rule 144A, acquiring for its
own account or for the account of a qualified institutional buyer; and
(b) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(c) the Specified Securities are being transferred in
compliance with any applicable blue sky securities law of all
applicable states of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the Restricted Global Securities pursuant
to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement. You and the Company are each 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.
Dated: ___________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By: _____________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
B-2
ANNEX C -- Form of
Guarantee
[FORM OF GUARANTEE]
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of March 23, 2004 by and between Norske Xxxx Canada Limited, as issuer,
the Guarantors and Xxxxx Fargo Bank, National Association, as Trustee (as
amended, restated or supplemented from time to time, the "Indenture"), and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest, 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 set forth in Article Ten 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 this Guarantee and the Indenture are expressly set forth in
Article Thirteen of the Indenture and reference is hereby made to the Indenture
for the precise terms and limitations of this Guarantee.
[Signatures on Following Pages]
C-1
IN WITNESS WHEREOF, each of the Guarantors has causes this
Guarantee to be signed by a duly authorized officer.
THE GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA (JAPAN) LIMITED
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA FINANCE LIMITED
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA PULP SALES INC.
By:___________________________________
Name:
Title:
C-2
NORSKE XXXX CANADA SALES INC.
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA SERVICES (HUNGARY)
LIMITED LIABILITY COMPANY
By:___________________________________
Name:
Title:
NORSKE XXXX CANADA (USA) INC.
By:___________________________________
Name:
Title:
NSCL HOLDINGS INC.
By:___________________________________
Name:
Title:
PACIFICA PAPERS SALES LTD.
By:___________________________________
Name:
Title:
PACIFICA PAPERS SALES INC.
By:___________________________________
Name:
Title:
C-3
PACIFICA POPLARS LTD.
By:___________________________________
Name:
Title:
PACIFICA POPLARS INC.
By:___________________________________
Name:
Title:
PACIFICA PAPERS US INC.
By:___________________________________
Name:
Title:
NORSKECANADA
by its managing general partner,
Norske Xxxx Canada Limited
By:___________________________________
Name:
Title:
C-4
