SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
EXHIBIT
4.3
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this "Supplemental Indenture"), dated as of December 30, 2005,
among Longview Fibre Paper and Packaging, Inc. (the "Guaranteeing Subsidiary"),
a subsidiary of Longview Fibre Company, a Washington corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and U.S. Bank National Association, as trustee under the
Indenture referred to below (the "Trustee").
W
I T N E S S E T H
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the "Indenture"), dated as of January 25, 2002 providing for the issuance
of 10% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS,
the Indenture provides that under certain circumstances the Company must cause
certain of its Subsidiaries to execute and deliver to the Trustee a supplemental
indenture pursuant to which such Subsidiary shall unconditionally guarantee
all
of the Company's obligations under the Notes and the Indenture on the terms
and
conditions set forth herein (the "Note Guarantee"); and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. Agreement
to Guarantee.
The
Guaranteeing Subsidiary hereby agrees as follows:
|
(a)
|
Along
with all other Guarantors, to jointly and severally, fully,
unconditionally and irrevocably guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and
its
successors and assigns, irrespective of the validity and enforceability
of
the Indenture, the Notes or the obligations of the Company hereunder
or
thereunder, that:
|
|
(i)
|
the
principal of and interest and Liquidated Damages, if any, on the
Notes
shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest and Liquidated
Damages, if any, on the overdue principal of and interest on the
Notes, if
any, if lawful (subject in all cases to any applicable grace period
provided in the Indenture), and all other obligations of the Company
to
the Holders or the Trustee hereunder or thereunder shall be promptly
paid
in full or performed, all in accordance with the terms hereof and
thereof;
and
|
|
(ii)
|
in
case of any extension of time of payment or renewal of any Notes
or any of
such other obligations, the same shall be promptly paid in full when
due
or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing
payment
when due of any amount so guaranteed or any performance so guaranteed
for
whatever reason, the Guaranteeing Subsidiary shall be jointly and
severally obligated to pay the same
immediately.
|
Each
Guaranteeing Subsidiary agrees that this is a guarantee of payment and not
a
guarantee of collection.
|
(b)
|
The
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture,
the
absence of any action to enforce the same, any waiver or consent
by any
Holder of the Notes with respect to any provisions hereof or thereof,
the
recovery of any judgment against the Company, any action to enforce
the
same or any other circumstance that might otherwise constitute a
legal or
equitable discharge or defense of a
guarantor.
|
|
(c)
|
The
following is hereby waived: 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.
|
|
(d)
|
This
Note Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and the
Indenture.
|
|
(e)
|
If
any Holder or the Trustee is required by any court or otherwise to
return
to the Company, the Guarantors, or any Custodian, Trustee, liquidator
or
other similar official acting in relation to either the Company or
the
Guarantors, any amount paid by either to the Trustee or such Holder,
this
Note Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.
|
|
(f)
|
The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed
hereby
until payment in full of all obligations guaranteed
hereby.
|
|
(g)
|
As
between the Guarantors, on the one hand, and the Holders and the
Trustee,
on the other hand, (x) the maturity of the obligations guaranteed
hereby
may be accelerated as provided in Article Six of the Indenture for
the purposes of this Note Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) 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
Note Guarantee. The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does
not impair the rights of the Holders under the Note
Guarantee.
|
|
(h)
|
The
Guaranteeing Subsidiary, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that
the Note
Guarantee of such Guaranteeing Subsidiary not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any
similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders
and the Guaranteeing Subsidiary, hereby irrevocably agree that the
obligations of the Guaranteeing Subsidiary shall, after giving effect
to
such maximum amount and all other contingent and fixed liabilities
of the
Guaranteeing Subsidiary that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution
from
or payments made by or on behalf of any other Guarantor in respect
of the
obligations of such other Guarantor under the Indenture, result in
the
obligations of the Guaranteeing Subsidiary under its Note Guarantee
not
constituting a fraudulent transfer or
conveyance.
|
3.
Subordination.
The
Obligations of the Guaranteeing Subsidiary under its Note Guarantee pursuant
to
this Supplemental Indenture shall be junior and subordinated to the prior
payment in full in cash or cash equivalents of all Indebtedness under the Credit
Agreement and all other Senior Debt of the Guaranteeing Subsidiary, including,
Senior Debt of the Guaranteeing Subsidiary incurred after the date hereof,
on
the same basis as provided in the Indenture with respect to the subordination
of
payments on the Notes by the Company to the prior payment in full of the Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee
and
the Holders shall have the right to receive and/or retain payments by the
Guaranteeing Subsidiary only at such time as they may receive and/or retain
payments in respect of the Notes pursuant to the Indenture, including
Article Ten thereof.
4. Execution
and Delivery.
The
Guaranteeing Subsidiary agrees that the Note Guarantee shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.
5.
Guaranteeing
Subsidiary May Consolidate, Etc., on Certain Terms.
A
Guarantor may not sell or otherwise dispose of all or substantially all of
its
assets, or consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person) another Person, other than the Company or another
Guarantor, unless:
|
(a)
|
immediately
after giving effect to such transaction, no Default or Event of Default
exists; and
|
|
(b)
|
either:
|
|
(i)
|
the
Person acquiring the property in any such sale or disposition or
the
Person formed by or surviving any such consolidation or merger is
a
corporation organized or existing under the laws of the United States,
any
state thereof or the District of Columbia and assumes all the obligations
of that Guarantor under this Supplemental Indenture, the Indenture,
its
Note Guarantee and the Registration Rights Agreement pursuant to
a
supplemental indenture satisfactory to the Trustee;
or
|
|
(ii)
|
such
sale or other disposition complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds
therefrom.
|
In
case
of any such consolidation, merger, sale or conveyance and upon the assumption
by
the successor Person, by supplemental indenture, executed and delivered to
the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants
and
conditions of the Indenture to be performed by a Guarantor, such successor
Person shall succeed to and be substituted for a Guarantor with the same effect
as if it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed upon
all
of the Notes issuable hereunder which theretofore shall not have been signed
by
the Company and delivered to the Trustee. All the Note Guarantees so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with
the
terms of the Indenture as though all of such Note Guarantees had been issued
at
the date of the execution hereof.
Except
as
set forth in Articles Four and Five of the Indenture, and notwithstanding
clauses (a) and (b) above, nothing contained in the Indenture or in any of
the
Notes shall prevent any consolidation or merger of a Guarantor with or into
the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
6. Releases.
The
Note
Guarantee of the Guaranteeing Subsidiary shall be released: (i) in connection
with the sale of all of the Capital Stock of the Guaranteeing Subsidiary to
a
Person that is not (either before or after giving effect to such transaction)
a
Restricted Subsidiary of the Company (including by way of merger or
consolidation), if the sale of all such Capital Stock complies with
Section 4.10 of the Indenture; or (ii) if the Company properly designates
the Guaranteeing Subsidiary an Unrestricted Subsidiary. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel
to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without limitation
Section 4.10 thereof, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Guaranteeing Subsidiary from
its obligations under its Note Guarantee.
7. Assumption
of Terms of the Indenture.
The
Guaranteeing Subsidiary hereby assumes, agrees to be bound and shall have the
benefit of all the obligations and terms of the Indenture applicable to a
Guarantor.
8. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability
for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
9. NEW
YORK LAW TO GOVERN.
THE
LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE.
10. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
11. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
12. Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Guaranteeing Subsidiary and the Company.
-6-
IN
WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be
duly
executed and attested, all as of the date first above written.
Dated:
December 30, 2005.
LONGVIEW
FIBRE PAPER AND PACKAGING, INC.
By: /s/
X.
X. Xxxxxxxxxx
Name:
X. X. Xxxxxxxxxx
Title:
President and Chief Executive Officer
LONGVIEW
FIBRE COMPANY
By:/s/
X.
X. Xxxxxxxxxx
Name:
X. X. Xxxxxxxxxx
Title:
President and Chief Executive Officer
U.S.
BANK
NATIONAL ASSOCIATION, as TRUSTEE
By: /s/
Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Vice President
