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PACIFICA PAPERS INC.
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
(Formerly NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION)
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THIRD SUPPLEMENTAL INDENTURE
Dated for reference January 31, 2001
to
INDENTURE
Dated as of March 12, 1999
by and between
PACIFICA PAPERS INC., as Issuers
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
2
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENUTRE dated for reference January 31, 2001, by
and among PACIFICA POWER CO. LTD. ("PowerCo"), PACIFICA PAPERS INC., a Canadian
corporation (the "Company"), the guarantors set forth on the signature pages
hereto (the "Guarantors") and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(formerly NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION) as trustee under the
hereafter defined Indenture (the "Trustee").
WHEREAS, the Company, PowerCo 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 dues 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 made among the Company, PowerCo, the Guarantors (other than Pacifica
Papers Sales Ltd.) and the Trustee dated March 12, 1999; and
WHEREAS, the Indenture was further supplemented by the Second
Supplemental Indenture made among the Company, PowerCo, the Guarantors and the
Trustee dated December 30, 1999; and
WHEREAS, the Company has entered into an agreement dated November 3,
2000 with Xxxxxx River Energy Inc. to sell all of the shares of its wholly owned
hydro electric subsidiary PowerCo; and
WHEREAS, Section 10.05 of the Indenture provides that under certain
circumstances, PowerCo may be released from all of its obligations under its
Guarantee; and
WHEREAS, the execution and delivery of this Third Supplemental
Indenture has been duly and validly authorized by the company, PowerCo and the
Guarantors; and
WHEREAS, all conditions and requirements necessary to make this Third
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
WERHEAS, pursuant to Section 10.05 of the Indenture, the Trustee is
authorized to execute and deliver this Third Supplemental Indenture.
NOW THERFORE, in consideration of the sum of ONE ($1.00) DOLLAR now
paid to the Trustee by PowerCo, the receipt and sufficiency of which is hereby
acknowledged, and other good and valuable consideration, PowerCo and the Trustee
mutually covenant and agree for and on behalf of the Holders of the Notes as
follows:
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ARTICLE 1
RELEASE OF POWERCO
Section 1.01. RELEASE. The Trustee on its own behalf and its successors
and assigns, and for and on behalf of the Holders of the Notes, HEREBY REMISE,
RELEASE AND FOREVER DISCHARGE PowerCo, of and from all manners of action, causes
of action, suits, contracts, obligations, claims, demands, damages, costs and
expenses of any nature or kind whatsoever, whether in law or in equity, arising
out of or in any way connected with PowerCo's obligations under its Guarantee
endorsed on the Notes and under Article Ten of the Indenture. For greater
certainty, the Trustee hereby agrees to the termination of the Guarantee.
ARTICLE II
MISCELLANEOUS PROVISONS
Section 2.01. TERMS DEFINED. For all purposed of this Third
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this Third 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, the Second 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. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTURED IN ACORDANCE 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 Third Supplemental Indenture,
provided that such jurisdiction shall be non-exclusive.
Section 2.04. SUCCESSORS. All agreements of the Company in this Third
Supplemental Indenture and the Notes shall bind is successors. All agreements of
each of the Guarantors in this Third Supplemental Indenture, the Notes and the
Guarantees shall jointly and severally bind their respective successors. All
agreements of the Trustees in this Indenture shall bind its successors.
Section 2.05. MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this Third 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 Third 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.
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Section 2.07. TRUSTEE DISCLAIMER. The Trustee accepts the amendment of
the Indenture effected by this Third 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 statements contained herein, all of which
recitals or statements are made solely by the Company, PowerCo and the
Guarantors, or for or with respect to (i) the validity or sufficiency of this
Third Supplemental Indenture or any of the terms of provisions hereof, (ii) the
proper authorization hereof by the Company, PowerCo and each Guarantor by
corporate action or otherwise, (iii) the due execution hereof by the Company,
PowerCo and each Guarantor (iv) the consequences (direct of 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 2.08. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Third Supplemental Indenture,
the Company 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, the
Second Supplemental Indenture or this Third 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
proceedings, 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 extend CT Corporation ceases to be able to be served on the basis
contemplated herein), by written notice to the Trust, designate such additional
or alternative agents for service of process under this Section 2.08 that (i)
maintains an office located in the Borough or 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 WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and attested, all as of the date
hereinafter written.
Dated: January 31, 2001
THE RELEASEE:
PACFICIA POWER CO. 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, Financial 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
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
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PACIFICA PAPERS SALES INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
PACIFICA PAPERS US 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 SALES LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
PACIFICA PAPERS K.K.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx X. Small
Title: Director
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THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Corporate Trust Officer
