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PACIFICA PAPERS INC.
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated for reference December 30, 1999
to
INDENTURE
Dated as of March 12, 1999
by and between
PACIFICA PAPERS INC., as Issuer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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$200,000,000
10% Senior Notes Due 2009
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE dated for reference December 30, 1999, by
and among PACIFICA PAPERS SALES LTD. (the "New Guaranteeing Subsidiary"), a
subsidiary of PACIFICA PAPERS INC., a Canadian corporation (the "Company"), the
Company, the guarantors set forth on the signature pages hereto (the
"Guarantors") and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as trustee under
the hereafter defined Indenture (the "Trustee").
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture dated as of March 12, 1999 (the
"Indenture"), providing for the issuance of up to $200,000,000 aggregate
principal amount of the Company's 10% Senior Notes due 2009 (the "Notes"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture, Notes in the aggregate principal amount of $200,000,000; and
WHEREAS, the Indenture was supplemented by a First Supplemental
Indenture made among the Company, the Guarantors and the Trustee dated March 12,
1999 (the "First Supplemental Indenture"); and
WHEREAS, the Company has organized the New Guaranteeing Subsidiary; and
WHEREAS, the Indenture provides that under certain circumstances the
New Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the New Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Guarantee");
and
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been duly and validly authorized by the Company, the Guarantors
and the New Guaranteeing Subsidiary; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled by the parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto; and
WHEREAS, pursuant to Section 8.01 of the Indenture, the Trustee is
authorized to execute and deliver this Second Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
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ARTICLE I
GUARANTEE OF NOTES
Section 1.01. GUARANTEE. The New Guaranteeing Subsidiary hereby, along
with all other Guarantors named in the Indenture, jointly and severally
unconditionally guarantees, on a senior unsecured basis, to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors, irrespective of: (i) the validity and enforceability of the
Indenture, the Notes or the obligations of the Company or any other Guarantors
to the Holders or the Trustee hereunder or thereunder; or (ii) the absence of
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or a default of a Guarantors, that:
(a) the principal of, premium and interest, 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, if any, with respect to the notes and all
other obligations of the Company or any Guarantor to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee under Section 7.07 of
the Indenture) and all other obligations under the Indenture or the Notes will
be promptly paid in full or performed, all in accordance with the terms hereof
and thereof; and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or failing performance of any other
obligation of the Company to the Holders, for whatever reason, each Guarantor
will be obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under the Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes or the Trustee to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extend as the obligations of the
Company.
The New Guaranteeing Subsidiary agrees, by execution of the Guarantee
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Indenture or the Notes, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular Notes,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. The New Guaranteeing Subsidiary, by
execution of the Guarantee, waives the benefit of diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that the
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Guarantee. The
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
New Guaranteeing Subsidiary further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (a) subject to Article Ten
of the Indenture, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six of the Indenture for the purposed of the
Guarantee, notwithstanding any stay,
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injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any declaration of
acceleration of such obligations as provided in Article Six of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee.
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, or 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 extend permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced restored or returned.
No shareholder, officer, director, employee or incorporator, past,
present or future, of any Guarantor, as such shall have any personal liability
under this Guarantee by reason of his, her or its status as such shareholder,
officer, director, employee or incorporator.
Section 1.02. EXECUTION AND DELIVERY OF GUARANTEE. To further evidence
the Guarantee set forth in Section 1.01 hereof, the New Guaranteeing Subsidiary
hereby agrees that a notation of such Guarantee, substantially in the form
included in Exhibit F of the Indenture, may be endorsed on each Note
authenticated and delivered by the Trustee 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.
The New Guaranteeing Subsidiary agrees that its Guarantee shall remain
in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of any Guarantee set
forth in this Indenture on behalf of the Guarantor.
Section 1.03 LIMITATION OF GUARANTEE
The obligation 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
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collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under 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 1.04 RELEASE OF GUARANTOR.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all of its assets or the Company and
its Restricted Subsidiaries have sold all of the Capital Stock
of the Guarantor owned by them, in each case in a transaction
in compliance with the terms of the Indenture (including
Sections 4.10 and 5.01 thereof);
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the
Company or another Guarantor in a transaction in compliance
with Section 5.01 hereof; or
(iii) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of the Indenture (including Section
4.08 thereof);
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 provide for relating to such transaction have been complied
with and that such release is authorized and permitted hereunder.
If all of the conditions to release contained in Section 10.05 of the
Indenture have been satisfied, the Trustee shall executed 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 Article Ten of the Indenture.
Section 1.05 ASSUMPTION OF TERMS OF THE INDENTURE
The New Guaranteeing Subsidiary hereby assumes, agrees to be bound and
shall have the benefit of all of the obligations and terms of the Indenture
applicable to a Guarantor.
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. TERMS DEFINED. For all purposes of this Second
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this Second Supplemental
Indenture and defined in the Indenture have the meanings specified in the
Indenture.
Section 2.02. INDENTURE. Except as amended hereby, the Indenture, the
First Supplemental Indenture and the Notes are in all respects ratified and
confirmed and all the terms shall remain in full force and effect.
Section 2.03. GOVERNING LAW. THE SECOND SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. Each of the parties hereto
agrees 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 this Second Supplemental
Indenture, provided that such jurisdiction shall be non-exclusive.
Section 2.04. SUCCESSORS. All agreements of the Company in this Second
Supplemental Indenture and the Notes shall bind its successors. All agreements
of each of the New Guaranteeing Subsidiary and the Guarantors in this Second
Supplemental Indenture, the Notes and the Guarantees shall jointly and severally
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 2.05. MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this Second Supplemental Indenture. Each signed counterpart
shall be deemed an original, but all of them together represent the same
agreement.
Section 2.06. EFFECTIVENESS. The provisions of this Second
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Article Eight of
the Indenture.
Section 2.07. TRUSTEE DISCLAIMER. The Trustee accepts the amendment of
the Indenture effected by this Second Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities in the performance of the trust created by the Indenture as hereby
amended, and without limiting the generality of the foregoing, the Trustee shall
not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are
made solely by the Company, the New Guaranteeing Subsidiary and the Guarantors,
or for or with respect to (i) the validity or sufficiency of this Second
Supplemental Indenture or any of the terms of provisions hereof, (ii) the proper
authorization hereof by the Company, the New Guaranteeing Subsidiary and each
Guarantor by corporate action or otherwise, (iii) the due execution hereof by
the Company, the New Guaranteeing Subsidiary and each Guarantor, (iv) the
consequences (direct or indirect and whether deliberate or inadvertent)
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of any amendment herein provided for, and the Trustee makes no representation
with respect to any such matters.
Section 2.08. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Second Supplemental Indenture,
each of the Company, the New Guaranteeing Subsidiary and each Guarantor (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation as its authorized agent upon which process may be
served in any suit, action or proceeding arising out of or relating to the
Notes, the Indenture, the First Supplemental Indenture or this Second
Supplemental Indenture that may be instituted in any Federal or State court in
the State of New York, Borough of Manhattan, or brought under Federal or State
securities laws or brought by the Trustee (whether in its individual capacity or
in its capacity as Trustee hereunder), and acknowledges that CT Corporation 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 and written notice of said service to it (mailed or
delivered to its Executive Director at its principal office as specified in
Section 11.02 of the Indenture), shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. 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, in full force and
effect so long as the Indenture shall be in full force and effect; PROVIDED that
the Company may and shall (to the extent CT Corporation ceases to be able to be
served on the basis contemplated herein), by written notice to the Trustee,
designate such additional or alternative agents for service of process under
this Section 2.08 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (x)
counsel for the Company or (y) a corporate service company which acts as agent
for service of process for other Persons in the ordinary course of its business
and (iii) agrees to act as agent for service or process in accordance with this
Section 2.08. 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
delivery 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 2.08.
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SIGNATURES
IN WITNESS WEHREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
hereinafter written.
Dated: December 30, 1999
The New Guaranteeing Subsidiary:
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
The Issuer:
PACIFICA PAPERS INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance and
Chief Financial Officer
The Guarantors:
PACIFICA POPLARS LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
PACIFICA POPLARS INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
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PACIFICA POWER CO. LTD.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
EXPORT SALES COMPANY INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
PACIFICA PAPERS CO. LIMITED
PARTNERSHIP by its general partner
PACIFICA PAPERS INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance and Chief Financial Officer
PACIFICA PAPERS K.K.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Director
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The Trustee:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
