EXHIBIT 17
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NORSKE XXXX CANADA LIMITED
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 1, 2003
to
INDENTURE
Dated as of May 15, 2003
by and among
NORSKE XXXX CANADA LIMITED, as Issuer
The GUARANTORS named therein
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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8 5/8% Senior Notes Due 2011
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Article I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 Reaffirmation ............................................... 1
Article II
GUARANTEE OF NOTES
Section 2.01 Guarantee ................................................... 2
Section 2.02 Execution and Delivery of Guarantee ......................... 3
Section 2.03 Limitation of Guarantee ..................................... 4
Section 2.04 Release of Guarantor ........................................ 4
Section 2.05 Assumption of Terms of the Indenture ........................ 4
Article III
Miscellaneous Provisions
Section 3.01 Terms Defined ............................................... 5
Section 3.02 Indenture ................................................... 5
Section 3.03 Governing Law ............................................... 5
Section 3.04 Successors .................................................. 5
Section 3.05 Multiple Counterparts ....................................... 5
Section 3.06 Effectiveness ............................................... 5
Section 3.07 Trustee Disclaimer .......................................... 5
Section 3.08 Agent for Service, Submission to Jurisdiction,
Waiver of Immunities ..................................... 5
FIRST SUPPLEMENTAL INDENTURE dated as of December 1, 2003, by and among
NORSKE XXXX CANADA LIMITED, a Canadian corporation (the "Company"), 6141005
CANADA INC. a Canadian corporation (the "New Guarantor"), the guarantors set
forth on the signature pages hereto (the "Existing Guarantors", and together
with the New Guarantor, the "Guarantors"), and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION as trustee under the hereafter defined Indenture (the
"Trustee").
WHEREAS, the Company and the Existing Guarantors previously executed and
delivered to the Trustee an indenture dated as of May 15, 2003 (the
"Indenture"), providing for the issuance of an unlimited principal amount of the
Company's 8 5/8% Senior Notes Due 2011 (the "Notes"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture, Notes in the aggregate principal amount of $400,000,000; and
WHEREAS pursuant to a share purchase agreement dated as of November 26,
2003 the Company acquired all of the issued and outstanding shares of the New
Guarantor; and
WHEREAS, the Indenture provides that under certain circumstances the New
Guarantor shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor 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 New Guarantor desires, by this First Supplemental Indenture
(the "First Supplemental Indenture"), to unconditionally guarantee all of the
Company's obligations under the Notes and the Indenture on the terms set forth
herein; and
WHEREAS, the Existing Guarantors desire, by this First Supplemental
Indenture, to expressly reaffirm, jointly and severally, the obligations of the
Existing Guarantors under the Indenture and under Guarantees endorsed on the
Notes; and
WHEREAS, all the conditions and requirements necessary to make this First
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled by the parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto.
NOW, THEREFORE, in consideration of the above premises, each party agrees,
for the benefit of the others and for the equal and ratable benefit of the
Holders of the Notes, as follows:
ARTICLE I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 Reaffirmation. Each Existing Guarantor hereby expressly and
unconditionally reaffirms each and every covenant, agreement and undertaking of
such Existing Guarantor in the Indenture, and also hereby expressly and
unconditionally reaffirms each and every covenant, agreement and undertaking in
its Guarantee endorsed on the Notes outstanding on the date of this First
Supplemental Indenture and in each Guarantee endorsed on any Notes delivered
hereafter.
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ARTICLE II
GUARANTEE OF NOTES
Section 2.01 Guarantee.
The New Guarantor hereby jointly and severally unconlitionally guarantees,
on a senior unsecured basis, to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and it successors, irrespective of:
(i)the validity and enforceability of the Indenture, the Notes or the
obligations of the Company or any other Guarantors to the Holders or the Trustee
hereunder or thereunder; or (ii) the absence of any action to enforce the same
or any other circumstance which might otherwise constitute a legal or equitable
discharge or default of a Guarantor, that: (a) the principal of, premium, if
any, interest on 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 of, and premium if any, and(to the extent permitted by law)interest
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, the New
Guarantor will be obligated to pay, or to perform or cause the performance of,
the same immediately. An Event of Default under the Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes or the Trustee to accelerate the obligations of the Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Company.
The New Guarantor, by execution of this Guarantee, agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Indenture or the Notes, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. The New Guarantor, by execution of this 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. This Guarantee is a guarantee of payment and not
of collection. If any Holder or the Trustee is required by any court or other
wise 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 Guarantor further
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agrees that, as between it, on the one hand, and the Holders and the Trustee, on
the other hand, (a) subject to Article Ten of the Indenture, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six of
the Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any acceleration of such
obligations as provided in Article Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
New Guarantor for the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
No shareholder, officer, director, employee or incorporator, past, present
or future, of the New Guarantor, as such shall have any personal liability under
this Guarantee by reason of his, her or its status as such shareholder, officer,
director, employee or incorporator.
Section 2.02 Execution and Delivery of Guarantee.
To further evidence the Guarantee set for thin Section 2.01 hereof, the New
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form included in Exhibit F of the Indenture, shall be endorsed on each Note
authenticated and delivered by the Trustee after Article 10 of the Indenture
with respect to such New Guarantor becomes effective in accordance with Section
4.13 of the Indenture and such Guarantee shall be executed by either manual or
facsimile signature of an Officer of the New Guarantor. The validity and
enforceability of the Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.
The New Guarantor hereby agrees that its Guarantee set for thin Section
2.01 hereof shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer of the New Guarantor whose signature is on the Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which such Guarantee is endorsed or at any time thereafter, the New
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
under the Indenture, shall constitute due delivery of the Guarantee set forth
in the Indenture on behalf of the New Guarantor.
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Section 2.03 Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata
amount based on the net assets of each Guarantor, determined in accordance with
GAAP.
Section 2.04 Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all of its assets or the Company and its
Restricted Subsidiaries have sold all of the Capital Stock of the
Guarantor owned by them, in each case in a transaction in compliance
with the terms of the Indenture (including Sections 4.10 and 5.01
thereof);
(ii) the Guarantor merges with or into or consolidates with, or transfers
all or substantially all of its assets to, the Company or another
Guarantor in a transaction in compliance with Section 5.01 of the
Indenture; or
(iii) the Guarantor is designated an Unrestricted Subsidiary in compliance
with the terms of the Indenture;
and in each such case, the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herexin provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder and under the
Indenture.
If all of the conditions to release contained in this Section 2.04 and the
Indenture 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 Article Ten of the Indenture.
Section 2.05 Assumption of Terms of the Indenture. The New Guarantor
hereby assumes, agrees to be bound and shall have the benefit of all obligations
and terms of the Indenture applicable to a Guarantor.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01 Terms Defined. For all purposes of this First Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this First Supplemental Indenture and defined
in the Indenture have the meanings
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specified in the Indenture.
Section 3.02 Indenture. Except as amended hereby, the Indenture and the
Notes are in all respects ratified and confirmed and all the terms shall remain
in full force and effect.
Section 3.03 Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 3.04 Successors. All agreements of the Company and any Guarantor
in the Indenture and the Notes shall bind their respective successors. All
agreements of the Trustee, any additional trustee and any Paying Agents in the
Indenture or this First Supplemental Indenture shall bind its successor.
Section 3.05 Multiple Counterparts. The parties may sign multiple counter
parts of this First Supplemental Indenture. Each signed counterpart shall be
deemed an original, but all of them to get her represent the same agreement.
Section 3.06 Effectiveness. The provisions of this First Supplemental
Indenture will take effect immediately upon its execution and delivery by the
Trustee in accordance with the provisions of Article Eight of the Indenture.
Section 3.07 Trustee Disclaimer. The Trustee accepts the amendment of the
Indenture effected by this First Supplemental Indenture and agrees to execute
the trust created by the Indenture as hereby amended, but only upon the terms
and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner what so ever for or with respect
to any of the recitals or statement contained herein, all of which recitals or
statements are made solely by the Company and the Guarantors, or for or with
respect to (i) the validity or sufficiency of this First Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization hereto
by the Company and each Guarantor by corporate action or otherwise, (iii) the
due execution hereto by the Company and each Guarantor, (iv) the consequences
(direct or indirect and whether deliberate or inadvertent) of any amendment
herein provided for, and the Trustee makes no representation with respect to any
such matters.
Section 3.08 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this First Supplemental Indenture,
each of 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 Notes, the Indenture or this First
Supplemental Indenture that may be instituted in any Federal or State court in
the State of New York, Borough of Manhattan, or brought under Federal or State
securities laws or brought by the Trustee (whether in its individual capacity or
in its capacity as Trustee hereunder), and acknowledges that CT Corporation
System has accepted such designation, (ii) submits to the
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jurisdiction of any such court in any such suit, act on or proceeding, and (iii)
agrees that service of process upon CT Corporation System and written notice of
said service to it (mailed or delivered to its Executive Director at its
principal office as specified in Section 11.02 of the Indenture), shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding. Each of 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 the Indenture shall
be in full force and effect; provided that the Company may and shall (to the
extent CT Corporation System ceases to be able to be served on the basis
contemplated herein), by written notice to the Trustee, designate such
additional or alternative agents for service of process under this Section 3.08
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 of process in accordance with this Section 3.08. 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 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 the New
Guarantor, if any, appointed and acting in accordance with this Section 3.08.
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SIGNATURES
IN WITNESS WHEREOF, the parties here to have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
The New Guarantor:
6141005 CANADA INC.
By: Illegible
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Name:
Title:
The Company:
NORSKE XXXX CANADA LIMITED
By: Illegible
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Name:
Title:
The Existing Guarantors:
ELK FALLS PULP AND PAPER LIMITED
By: Illegible
------------------------------------
Name:
Title:
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name:
Title:
NORSKE XXXX CANADA (JAPAN) LTD.
By: Illegible
------------------------------------
Name:
Title:
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
By: Illegible
------------------------------------
Name:
Title:
8
NORSKE XXXX CANADA PULP SALES INC.
By: Illegible
------------------------------------
Name:
Title:
NORSKE XXXX CANADA SALES INC.
By: Illegible
------------------------------------
Name:
Title:
NORSKE XXXX CANADA SERVICES (HUNGARY)
LIMITED LIABILITY COMPANY
By: Illegible
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Name:
Title:
NORSKE XXXX CANADA (USA) INC.
By: Illegible
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Name:
Title:
NSCL HOLDINGS INC.
By: Illegible
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Name:
Title:
PACIFICA POPLARS LTD.
By: Illegible
------------------------------------
Name:
Title:
PACIFICA POPLARS INC.
By: Illegible
------------------------------------
Name:
Title:
PACIFICA PAPERS SALES INC.
By: Illegible
------------------------------------
Name:
Title:
9
PACIFICA PAPERS US INC.
By: Illegible
------------------------------------
Name:
Title:
NORSKECANADA BY ITS GENERAL PARTNER
NORSKE XXXX CANADA LIMITED
By: Illegible
------------------------------------
Name:
Title:
PACIFICA PAPERS SALES LTD.
By: Illegible
------------------------------------
Name:
Title:
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AS TRUSTEE
By: Illegible
------------------------------------
Name:
Title:
