EXHIBIT 10-9
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NORSKE XXXX CANADA LIMITED
(FORMERLY PACIFICA PAPERS INC.)
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
(FORMERLY NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION)
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SEVENTH SUPPLEMENTAL INDENTURE
Dated as of January 31, 2003
to
INDENTURE
Dated as of March 12, 1999
by and among
NORSKE XXXX CANADA LIMITED
(Formerly PACIFICA PAPERS INC.),
the GUARANTORS PARTY HERETO
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
(Formerly NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION)
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$200,000,000
10% Senior Notes Due 2009
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Article I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 Reaffirmation.......................................2
Article II
GUARANTEE OF NOTES
Section 2.01 Guarantee...........................................2
Section 2.02 Execution and Delivery of Guarantee.................4
Section 2.03 Limitation of Guarantee.............................4
Section 2.04 Release of Guarantor................................4
Section 2.05 Assumption of Terms of the Indenture................5
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...............................6
Section 3.06 Effectiveness.......................................6
Section 3.07 Trustee Disclaimer..................................6
Section 3.08 Agent for Service; Submission to Jurisdiction; Waiver
of Immunities.......................................6
SEVENTH SUPPLEMENTAL INDENTURE dated as of January 31, 2003 by and
among NORSKE XXXX CANADA LIMITED, a Canadian corporation (the "COMPANY",
(formerly PACIFICA PAPERS INC. ("PACIFICA")), NORSKE XXXX CANADA (JAPAN) LTD. (a
Japanese corporation) (the "ASSUMING GUARANTOR"), the guarantors set forth on
the signature pages hereto (the "EXISTING GUARANTORS" and together with the
Assuming Guarantor, the "GUARANTORS"), and XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION as trustee under the hereafter defined Indenture (the "TRUSTEE").
WHEREAS Pacifica and certain of the Existing Guarantors previously
executed and delivered to the Trustee an Indenture dated as of March 12, 1999,
as amended from time to time (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 the First Supplemental
Indenture dated as of March 12, 1999 among the Company, certain of the Existing
Guarantors, Pacifica Power Co. Ltd. and the Trustee (the "FIRST SUPPLEMENTAL
INDENTURE"); and
WHEREAS, the Indenture was further supplemented by the Second
Supplemental Indenture dated as of December 30, 1999 among the Company, certain
of the Existing Guarantors, Pacifica Power Co. Ltd. and the Trustee (the "SECOND
SUPPLEMENTAL INDENTURE"); and
WHEREAS, the Indenture was further supplemented by the Third
Supplemental Indenture dated as of January 31, 2001 among the Company, certain
of the Existing Guarantors, Pacifica Power Co. Ltd. and the Trustee (the "THIRD
SUPPLEMENTAL INDENTURE"); and
WHEREAS, the Indenture was further supplemented by the Fourth
Supplemental Indenture dated as of September 1, 2001 among the Company, the
Existing Guarantors (other than Allwin Technical Services Inc.) and the Trustee
(the "FOURTH SUPPLEMENTAL INDENTURE"); and
WHEREAS, the Indenture was further supplemented by the Fifth
Supplemental Indenture dated as of September 30, 2002 among the Company, the
Existing Guarantors and the Trustee (the "FIFTH SUPPLEMENTAL INDENTURE"); and
WHEREAS the Indenture has further Supplemented by the Sixth
Supplemental Indenture dated as of October 8, 2002 among the Company, the
Existing Guarantors and the Trustee (the "SIX SUPPLEMENTAL INDENTURE"); and
WHEREAS pursuant to a Merger Agreement dated as of January 31, 2003,
Pacifica Papers Kabushiki Kaisha, Norse Xxxx Pulp Sales (Japan) Ltd. and Norske
Xxxx Canada (Japan) Ltd. intend to merge under the laws of Japan and continue as
the Assuming Guarantor; and
WHEREAS, the Indenture provides that under certain circumstances the
Assuming Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Assuming 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
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WHEREAS, the Assuming Guarantor desires, by this Seventh Supplemental
Indenture (the "Seventh 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 Seventh 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, the Guarantors are all of the Restricted Subsidiaries of the
Company; and
WHEREAS, the execution and delivery of this Seventh Supplemental
Indenture has been duly and validly authorized by a resolution of the Company
and each of the several Existing Guarantors and the Assuming Guarantor; and
WHEREAS, all the conditions and requirements necessary to make this
Seventh 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 Seventh
Supplemental Indenture and in each Guarantee endorsed on any Notes delivered
hereafter.
ARTICLE II
GUARANTEE OF NOTES
Section 2.01 GUARANTEE. The Assuming Guarantor hereby 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 default of a Guarantor, that: (a) the principal of, premium, if
any, interest on and 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 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 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
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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 Assuming 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 Assuming Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company.
The Assuming 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 Assuming 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
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 Assuming Guarantor 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 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
Assuming 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,
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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 Assuming 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 forth in Section 2.01 hereof, the Assuming 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 and such Guarantee shall be executed by either manual
or facsimile signature of an Officer of the New 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 Assuming Guarantor hereby agrees that its Guarantee set forth in
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 Assuming 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 Assuming 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 the Indenture on behalf of the Assuming Guarantor.
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);
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(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 (including Section
4.07 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 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 Assuming
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 Seventh
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this Seventh Supplemental
Indenture and defined in the Indenture have the meanings specified in the
Indenture.
Section 3.02 INDENTURE. Except as amended hereby, the Indenture, the
First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental 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 SEVENTH 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 GIVING EFFECT TO THE PRINICPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 3.04 SUCCESSORS. All agreements of the Company in this Seventh
Supplemental Indenture and the Notes shall bind its successors. All agreements
of each of the Guarantors in this Seventh Supplemental Indenture, the Notes and
the Guarantees shall jointly and severally bind their respective successors. All
agreements of the Trustee in this Seventh Supplemental Indenture shall bind its
successors.
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Section 3.05 MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this Seventh Supplemental Indenture. Each signed counterpart
shall be deemed an original, but all of them together represent the same
agreement.
Section 3.06 EFFECTIVENESS. The provisions of this Seventh 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 Seventh 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 whatsoever 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, the Assuming Guarantor
and the Existing Guarantors, or for or with respect to (i) the validity or
sufficiency of this Seventh Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the Company and each
Guarantor by corporate action or otherwise, (iii) the due execution hereof 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 Seventh Supplemental
Indenture, each of the Company and the Guarantors (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, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, Fourth Supplemental Indenture, the Fifth Supplemental
Indenture, Sixth Supplemental Indenture, or this Seventh 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 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 (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 the Guarantors 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
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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 hereto have caused this Seventh
Supplemental Indenture to be duly executed as of the date first written above.
THE ASSUMING GUARANTOR:
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE COMPANY:
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE EXISTING GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA PULP
OPERATIONS LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
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NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA SERVICES
(HUNGARY) LIMITED LIABILITY
COMPANY
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Merczog
-------------------------------------------
Name: Xxxxxx Xxxxxxxx and Zoltan
Merczog
Title: Directors
NORSKE XXXX CANADA (USA) INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NSCL HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
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PACIFICA PAPERS US INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKECANADA BY ITS MANAGING PARTNER
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
