EXHIBIT 4-2
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NORSKE XXXX CANADA LIMITED,
AS ISSUER,
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
AND
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
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INDENTURE
DATED AS OF MAY 15, 2003
--------------------------
US$150,000,000
8-5/8% SERIES C SENIOR NOTES DUE 2011
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310 (a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... N.A.
(b).................................................................. 7.08; 7.10; 11.02
(b)(1)............................................................... 7.10
(c).................................................................. N.A.
311 (a).................................................................. 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
312 (a).................................................................. 2.06
(b).................................................................. 11.03
(c).................................................................. 11.03
313 (a).................................................................. 7.06
(b)(1)............................................................... N.A.
(b)(2)............................................................... 7.06
(c).................................................................. 7.06; 11.02
(d).................................................................. 7.06
314 (a).................................................................. 4.02; 4.04; 11.02
(b).................................................................. N.A.
(c)(1)............................................................... 11.04
(c)(2)............................................................... 11.04
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 11.05
(f).................................................................. N.A.
315 (a).................................................................. 7.01(b)
(b).................................................................. 7.05; 11.02
(c).................................................................. 7.01(a)
(d).................................................................. 7.01(c)
(e).................................................................. 6.12
316 (a) (last sentence).................................................. 2.10
(a)(1)(A)............................................................ 6.05
(a)(1)(B)............................................................ 6.04
(a)(2)............................................................... N.A.
(b).................................................................. 6.08
(c).................................................................. 8.04
317 (a)(1)............................................................... 6.09
(a)(2)............................................................... 6.10
(b).................................................................. 2.05; 7.12
318 (a).................................................................. 11.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of this Indenture
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.................................................1
SECTION 1.02 OTHER DEFINITIONS..........................................24
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..........25
SECTION 1.04 RULES OF CONSTRUCTION......................................26
ARTICLE TWO
THE NOTES
SECTION 2.01 AMOUNT OF NOTES............................................26
SECTION 2.02 FORM AND DATING............................................27
SECTION 2.03 EXECUTION AND AUTHENTICATION...............................28
SECTION 2.04 REGISTRAR AND PAYING AGENT.................................29
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST........................29
SECTION 2.06 HOLDER LISTS...............................................30
SECTION 2.07 TRANSFER AND EXCHANGE......................................30
SECTION 2.08 REPLACEMENT NOTES..........................................31
SECTION 2.09 OUTSTANDING NOTES..........................................31
SECTION 2.10 TREASURY NOTES.............................................32
SECTION 2.11 TEMPORARY NOTES............................................32
SECTION 2.12 CANCELLATION...............................................32
SECTION 2.13 DEFAULTED INTEREST.........................................33
SECTION 2.14 CUSIP NUMBER...............................................33
SECTION 2.15 DEPOSIT OF MONEYS..........................................33
SECTION 2.16 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.....................34
SECTION 2.17 SPECIAL TRANSFER PROVISIONS................................36
SECTION 2.18 COMPUTATION OF INTEREST....................................39
ARTICLE THREE
REDEMPTION
SECTION 3.01 ELECTION TO REDEEM; NOTICES TO TRUSTEE.....................39
SECTION 3.02 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED...............40
SECTION 3.03 NOTICE OF REDEMPTION.......................................40
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.............................41
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE................................41
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PAGE
SECTION 3.06 NOTES REDEEMED IN PART.....................................42
SECTION 3.07 OPTIONAL REDEMPTION........................................42
SECTION 3.08 TAX REDEMPTION.............................................43
SECTION 3.09 PURCHASE OF NOTES..........................................43
ARTICLE FOUR
COVENANTS
SECTION 4.01 PAYMENT OF NOTES...........................................44
SECTION 4.02 REPORTS TO HOLDERS.........................................44
SECTION 4.03 WAIVER OF STAY, EXTENSION OR USURY LAWS....................44
SECTION 4.04 COMPLIANCE CERTIFICATE.....................................45
SECTION 4.05 TAXES......................................................45
SECTION 4.06 LIMITATION ON ADDITIONAL DEBT..............................46
SECTION 4.07 LIMITATION ON RESTRICTED PAYMENTS..........................46
SECTION 4.08 LIMITATION ON LIENS........................................48
SECTION 4.09 LIMITATION ON TRANSACTIONS WITH AFFILIATES.................49
SECTION 4.10 LIMITATION ON ASSET SALES..................................50
SECTION 4.11 LIMITATION ON CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.....53
SECTION 4.12 LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES..........53
SECTION 4.13 LIMITATION ON SUBSIDIARIES.................................54
SECTION 4.14 LEGAL EXISTENCE............................................54
SECTION 4.15 CHANGE OF CONTROL OFFER....................................55
SECTION 4.16 PAYMENT OF ADDITIONAL AMOUNTS..............................57
SECTION 4.17 [INTENTIONALLY OMITTED]....................................58
SECTION 4.18 LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS IF THE
NOTES ARE RATED INVESTMENT GRADE...........................58
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 LIMITATION ON CONSOLIDATION, AMALGAMATION,
MERGER AND SALE OF ASSETS...............................58
SECTION 5.02 SUCCESSOR PERSON SUBSTITUTED...............................60
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PAGE
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT..........................................60
SECTION 6.02 ACCELERATION...............................................62
SECTION 6.03 OTHER REMEDIES.............................................63
SECTION 6.04 WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT..............63
SECTION 6.05 CONTROL BY MAJORITY........................................63
SECTION 6.06 LIMITATION ON SUITS........................................64
SECTION 6.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS..............................64
SECTION 6.08 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.......................64
SECTION 6.09 COLLECTION SUIT BY TRUSTEE.................................65
SECTION 6.10 TRUSTEE MAY FILE PROOFS OF CLAIM...........................65
SECTION 6.11 PRIORITIES.................................................65
SECTION 6.12 UNDERTAKING FOR COSTS......................................66
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE..........................................66
SECTION 7.02 RIGHTS OF TRUSTEE..........................................68
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE...............................69
SECTION 7.04 TRUSTEE'S DISCLAIMER.......................................69
SECTION 7.05 NOTICE OF DEFAULTS.........................................69
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS..............................70
SECTION 7.07 COMPENSATION AND INDEMNITY.................................70
SECTION 7.08 REPLACEMENT OF TRUSTEE.....................................71
SECTION 7.09 SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER, ETC............72
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION..............................72
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..........73
SECTION 7.12 PAYING AGENTS..............................................73
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01 WITHOUT CONSENT OF HOLDERS.................................73
SECTION 8.02 WITH CONSENT OF HOLDERS....................................74
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PAGE
SECTION 8.03 COMPLIANCE WITH TRUST INDENTURE ACT........................76
SECTION 8.04 REVOCATION AND EFFECT OF CONSENTS..........................76
SECTION 8.05 NOTATION ON OR EXCHANGE OF NOTES...........................76
SECTION 8.06 TRUSTEE TO SIGN AMENDMENTS, ETC............................77
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01 DISCHARGE OF INDENTURE.....................................77
SECTION 9.02 LEGAL DEFEASANCE...........................................78
SECTION 9.03 COVENANT DEFEASANCE........................................79
SECTION 9.04 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE......79
SECTION 9.05 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS...................81
SECTION 9.06 REINSTATEMENT..............................................82
SECTION 9.07 MONEYS HELD BY PAYING AGENT................................82
SECTION 9.08 MONEYS HELD BY TRUSTEE.....................................82
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01 GUARANTEE..................................................83
SECTION 10.02 EXECUTION AND DELIVERY OF GUARANTEE........................85
SECTION 10.03 LIMITATION OF GUARANTEE....................................85
SECTION 10.04 ADDITIONAL GUARANTORS......................................85
SECTION 10.05 RELEASE OF GUARANTOR.......................................85
SECTION 10.06 WAIVER OF SUBROGATION......................................86
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS...............................87
SECTION 11.02 NOTICES....................................................87
SECTION 11.03 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS...............89
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.........89
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.............89
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PAGE
SECTION 11.06 RULES BY TRUSTEE AND AGENTS................................90
SECTION 11.07 BUSINESS DAYS; LEGAL HOLIDAYS..............................90
SECTION 11.08 GOVERNING LAW..............................................90
SECTION 11.09 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES....................................90
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..............91
SECTION 11.11 NO RECOURSE AGAINST OTHERS.................................91
SECTION 11.12 SUCCESSORS.................................................92
SECTION 11.13 MULTIPLE COUNTERPARTS......................................92
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC...........................92
SECTION 11.15 SEPARABILITY...............................................92
SECTION 11.16 JUDGMENT CURRENCY..........................................92
EXHIBITS
EXHIBIT A. FORM OF NOTE..............................................A-1
EXHIBIT B. FORM OF PRIVATE PLACEMENT LEGEND..........................B-1
EXHIBIT C. FORM OF LEGEND FOR GLOBAL NOTE............................C-1
EXHIBIT D. FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS..D-1
EXHIBIT E. FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S.......................E-1
EXHIBIT F. FORM OF GUARANTEE.........................................F-1
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INDENTURE, dated as of May 15, 2003, between NORSKE XXXX
CANADA LIMITED, a corporation incorporated under the laws of Canada, as
issuer (the "COMPANY"), the Guarantors (as defined herein) and XXXXX FARGO
BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
Article One
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"10% NOTES" means the 10% Senior Notes due 2009 of Pacifica,
and assumed by the Company.
"10% NOTES INCOME ADJUSTMENT AMOUNT" means the amount equal to
50% of the cumulative Consolidated Net Income of Pacifica for the period from
January 1, 1999 to September 1, 2001 (but not including any amount which is
included in determining Consolidated Net Income of the Company and its
successors) less the aggregate amount of any "Restricted Payments" (as such
term is defined in the indenture governing the 10% Notes) made by Pacifica in
that period that are required to be deducted in calculating the limitation on
"Restricted Payments" thereunder.
"ACCOUNTS RECEIVABLE" of a Person means all of the accounts
receivable of such Person, whether now existing or existing in the future.
"ACQUIRED DEBT" means Debt of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
or is merged or amalgamated with or into or consolidated with the Company or
a Restricted Subsidiary or which is assumed in connection with the
acquisition of assets from such Person and, in each case, not incurred by
such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary or such merger, consolidation or
acquisition.
"ADDITIONAL INTEREST" means additional interest on the Notes
which the Company and any Guarantors, jointly and severally, agree to pay to
the Holders pursuant to Section 2(e) of the Registration Rights Agreement.
"AFFILIATE" means, with respect to any specific Person, any
other Person (including, without limitation, such Person's issue, siblings
and spouse) that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
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specified Person; PROVIDED that, for purposes of this Indenture, the term
"Affiliate" shall not include Norske Skogindustrier ASA or its Affiliates.
For the purposes of this definition, "CONTROL" (including, with correlative
meanings, the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; PROVIDED that, for purposes of Section
4.09 hereof, beneficial ownership of at least 10% of the voting securities of
a Person, either directly or indirectly, shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent, or agent for
service of notices and demands.
"ASSET ACQUISITION" means (i) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to
which such Person becomes a Restricted Subsidiary of the Company, or shall be
merged or amalgamated with or into the Company or any Restricted Subsidiary
of the Company or (ii) the acquisition by the Company or any Restricted
Subsidiary of the Company of the assets of any Person (other than a
Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business
of such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, assignment, transfer, lease (other than operating leases entered
into in the ordinary course of business) or other disposition (including
pursuant to any Sale and Lease-Back Transaction), other than to the Company
or any of its Restricted Subsidiaries, in any single transaction or series of
related transactions of (i) any Capital Stock of any Restricted Subsidiary of
the Company or (ii) any other property or assets (including any interest
therein) of the Company or of any Restricted Subsidiary thereof outside of
the ordinary course of business; PROVIDED that Asset Sales shall not include
(a) a transaction or series of related transactions for which the Company or
its Restricted Subsidiaries receive aggregate consideration of less than
$5,000,000 (PROVIDED that the Company or such Restricted Subsidiary received
consideration equal to the Fair Market Value of any such property or assets
so sold, conveyed, assigned, transferred, leased or otherwise disposed of),
(b) the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of the Company as permitted under Section
5.01 hereof, (c) sales of property or equipment that has become worn out,
obsolete or damaged or otherwise unsuitable for use in connection with the
business of the Company or any Restricted Subsidiary, as the case may be, (d)
the sale of inventory in the ordinary course of business, (e) any Restricted
Payment made in compliance with Section 4.07 hereof, (f) the sale of Accounts
Receivable without recourse to the Company or any Restricted Subsidiary at no
more than customary discounts in the market for such sales of receivables of
similar quality, (g) the surrender or waiver of contract rights or the
settlement, release or surrender of
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contract, tort or other claims of any kind, (h) the granting of Liens not
prohibited by this Indenture, and (i) the liquidation of Cash Equivalents in
the ordinary course of business.
"ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
(i) cash or Cash Equivalents received by the Company or any Restricted
Subsidiary of the Company from such Asset Sale, after (a) provision for all
income or other taxes measured by or resulting from such Asset Sale, (b)
payment of all brokerage commissions, underwriting and other fees and
expenses, including, without limitation, legal, accounting and appraisal
fees, related to such Asset Sale, (c) provision for minority interest holders
in any Restricted Subsidiary of the Company as a result of such Asset Sale
and (d) deduction of appropriate amounts to be provided by the Company or a
Restricted Subsidiary of the Company as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in
such Asset Sale and retained by the Company or a Restricted Subsidiary after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with the assets
sold or disposed of in such Asset Sale and (ii) promissory notes and other
non-cash consideration received by the Company or any Restricted Subsidiary
from such Asset Sale or other disposition upon the liquidation or conversion
of such notes or non-cash consideration into cash.
"ATTRIBUTABLE DEBT" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the present value
(discounted according to GAAP at the cost of indebtedness implied in the Sale
and Lease-Back Transaction) of the total obligations of the lessee for
minimum rental payments during the remaining term of the lease included in
such Sale and Lease-Back Transaction (including any period for which such
lease has been extended).
"AVAILABLE ASSET SALE PROCEEDS" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have
not been applied in accordance with clause (iii)(A) or (iii)(B) of Section
4.10(a), and that have not yet been the basis for an Excess Proceeds Offer in
accordance with clause (iii)(C) of Section 4.10(a) hereof.
"BANKRUPTCY LAW" means Title 11, U.S. Code, the Bankruptcy and
Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or
any similar United States or Canadian federal, state or provincial law for
the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of
directors of such Person and any duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board
of Directors of the Company or a
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Guarantor, as appropriate, and to be in full force and effect, and, as so
certified, delivered to the Trustee.
"CAPITAL CONTRIBUTION" means any cash contribution to the
equity of the Company from a direct or indirect parent of the Company or from
another shareholder for which no consideration other than the issuance of
Capital Stock (other than Disqualified Capital Stock) is given.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, shares, partnership interests
or any other participation, right or other interest in the nature of an
equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to any
Person, Debt represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Debt shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) Canadian or U.S. dollars; (ii)
marketable direct obligations issued by, or unconditionally guaranteed by,
the federal government of the United States of America or Canada,
respectively, or issued by any agency thereof and backed by the full faith
and credit of the federal government of the United States of America or
Canada, respectively, in each case maturing within one year from the date of
acquisition thereof; (iii) marketable direct obligations issued by any state
of the United States of America or any province of Canada or any political
subdivision of any such state or province, as the case may be, or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest
ratings obtainable from either S&P or Xxxxx'x; PROVIDED that, in the event
that any such obligation is not rated by S&P or Xxxxx'x, such obligation
shall have the highest rating from DBRS; (iv) commercial paper maturing no
more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least R-1 (low) from DBRS or A-2 from S&P
or at least P-2 from Xxxxx'x; (v) overnight deposits, certificates of deposit
or bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or Canada or any state or province, as the case may be, thereof or
the District of Columbia or any U.S. or Canadian branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than US$250,000,000; (vi) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause
(ii) of this definition entered into with any bank meeting the qualifications
specified in clause (v) of this definition; and
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(vii) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (vi) of
this definition.
A "CHANGE OF CONTROL" of the Company will be deemed to have
occurred at such time as (i) any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act ("GROUP") becomes the
beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act), directly or indirectly, of
50% or more of the total voting power of the Common Stock of the Company,
(ii) there shall be consummated any consolidation or merger or amalgamation
of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Common Stock of the Company would be
converted into cash, securities or other property, other than a merger or
consolidation or amalgamation of the Company in which the holders of the
Common Stock of the Company outstanding immediately prior to the
consolidation or merger or amalgamation hold, directly or indirectly, at
least a majority of the Common Stock of the surviving corporation immediately
after such consolidation or merger or amalgamation, or (iii) the first day on
which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of
both a Change of Control and a Rating Decline.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMON STOCK" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"COMPANY" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article
Five of this Indenture and thereafter means the successor.
"COMPANY REQUEST" means any written request signed in the name
of the Company by any one of the Chairman of the Board of Directors, the
Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller or the Treasurer of the Company and
attested to by the Corporate Secretary or any Assistant Secretary of the
Company.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, at any time,
with respect to any Person, the ratio of EBITDA of such Person to
Consolidated Fixed Charges of such Person for the four most recent
consecutive fiscal quarters for which consolidated financial statements are
available (the "FOUR-QUARTER PERIOD") ending on or prior to the date of such
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determination. In addition to and without limitation of the foregoing, for
purposes of this definition, "EBITDA" and "Consolidated Fixed Charges" shall
be calculated after giving effect on a PRO FORMA basis to (i) the incurrence
or repayment of any Debt of such Person or any of its Restricted Subsidiaries
(and the application of the proceeds thereof) giving rise to the need to make
such calculation, (ii) any incurrence or repayment of other Debt (and the
application of the proceeds thereof) occurring on or after the first day of
the Four-Quarter Period and on or prior to the date of determination, as if
such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of such Four-Quarter Period and
(iii) any Asset Sales or Asset Acquisitions (including, without limitation,
any Asset Acquisition giving rise to the need to make such calculation as a
result of the Company or one of its Restricted Subsidiaries (including any
Person who becomes a Restricted Subsidiary as a result of the Asset
Acquisition) incurring, assuming or otherwise being liable for Acquired Debt
and also including any increase or decrease, as the case may be, in EBITDA
directly attributable to the assets which are the subject of the Asset Sale
or Asset Acquisition during the Four-Quarter Period) occurring on or after
the first day of the Four-Quarter Period and on or prior to the date of
determination, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Debt) occurred on
the first day of such Four-Quarter Period.
"CONSOLIDATED FIXED CHARGES" means, with respect to any
Person, for any period, the sum, without duplication, of (i) Consolidated
Interest Expense, plus (ii) the amount of all dividend payments (to any
Person other than the Company or a Restricted Subsidiary) on any series of
Disqualified Capital Stock of such Person (other than dividends paid in
Capital Stock (other than Disqualified Capital Stock)) paid, accrued or
scheduled to be paid or accrued during such period, plus (iii) the amount of
all cash dividend payments (to any Person other than the Company or a
Restricted Subsidiary) on any Series of Preferred Stock (other than
Disqualified Capital Stock) of such Person paid during such period, in each
case, on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
Person, for any period, the sum, without duplication, of (i) the aggregate
amount of interest charges (excluding (a) fees and expenses incurred in
connection with the Offering, (b) the amortization of any deferred gains or
losses in respect of Debt denominated in foreign currency as a result of
fluctuations in exchange rates and (c) any premium paid in connection with
the redemption or retirement of any Debt of such Person or its Restricted
Subsidiaries prior to the stated maturity thereof), whether expensed or
capitalized, incurred or accrued by such Person and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP for
such period (including non-cash interest payments), plus (ii) to the extent
not included in clause (i) of this definition, an amount equal to the sum of:
(a) imputed interest included in Capitalized Lease Obligations, (b) all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (c) the net costs
associated with Interest Rate Agreements, Currency Agreements and other
hedging
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obligations, (d) amortization of deferred financing costs and expenses, (e)
the interest portion of any deferred payment obligations, (f) amortization of
discount or premium on Debt, if any, (g) all capitalized interest and all
accrued interest, (h) all other non-cash interest expense, (i) all interest
incurred or paid under any guarantee of Debt (including a guarantee of
principal, interest or any combination thereof) of any Person and (j) the
amount of all payments charged to shareholder's equity on any "compound
financial instrument" (as described under GAAP) paid, accrued or scheduled to
be paid or accrued during such period. For purposes of calculating
Consolidated Interest Expense on a pro forma basis, (1) interest on Debt
bearing a floating rate of interest shall be calculated using the interest
rate in effect at the time of determination, taking into account on a pro
forma basis any Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term at the date of determination of
at least 12 months and (2) if Debt was incurred under a revolving credit
facility, the interest expense on such Debt shall be calculated based upon
the average daily balance of such Debt during the applicable period.
"CONSOLIDATED NET INCOME" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; PROVIDED that, to the extent included in calculating
Net Income of such Person, (i) the Net Income of any other Person, or a
Restricted Subsidiary of such other Person, shall be excluded, except to the
extent of the amount of cash dividends or distributions actually received by
such other Person or a Restricted Subsidiary of such other Person, (ii) the
Net Income (but not loss) of any Restricted Subsidiary of the Person in
question that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions (other than pursuant to the
Notes or this Indenture or pursuant to a restriction or limitation of the
type described in clause (c)(ii) of Section 4.12) shall be excluded to the
extent of such restriction or limitation, (iii)(a) the Net Income of any
Person acquired in a "pooling of interests" transaction for any period prior
to the date of such acquisition shall be excluded and (b) any net after-tax
gain (but not loss) resulting from an Asset Sale by the Person in question or
any of its Restricted Subsidiaries other than in the ordinary course of
business shall be excluded, (iv) after-tax items classified as extraordinary
or unusual gains or losses and any foreign exchange gains and losses shall be
excluded, (v) the cumulative effect of a change in accounting principles
after August 14, 2001 shall be excluded, (vi) any restoration to income or
any contingency reserve of an extraordinary, non-recurring or unusual nature
shall be excluded, except to the extent that provision for such reserve was
made out of Consolidated Net Income accrued at any time subsequent to August
14, 2001 and (vii) in the case of a successor to such Person by consolidation
or merger or amalgamation or as a transferee of such Person's assets, any
earnings of the successor corporation prior to such consolidation, merger,
amalgamation or transfer of assets shall be excluded if and to the extent
such corporation was not subject to this Indenture.
-8-
"CONSOLIDATED NET WORTH" of any Person means, as of any date,
the consolidated shareholders' equity of such Person as determined in
accordance with GAAP, less (to the extent included) amounts attributable to
Disqualified Capital Stock of such Person.
"CONTINUING DIRECTOR" means, with respect to the Company, as
of any date of determination, any member of the Board of Directors of the
Company (i) who was a member of the Board of Directors of the Company on
August 14, 2001 or (ii) whose appointment or election was approved by the
affirmative vote of a majority of the Continuing Directors who were members
of the Board of Directors of the Company at the time of such director's
nomination or election.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
Indenture is located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000,
Attention: Corporate Trust Services.
"CREDIT FACILITIES" means, collectively, any credit facilities
of the Company and/or the Guarantors together with the related documents
thereto (including, without limitation, any loan agreements, notes, guarantee
agreements, collateral documents, mortgages, instruments and security
documents executed in connection therewith), in each case as such agreements
may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including without
limitation any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the Debt
under such agreements, together with any successor or replacement agreements
and whether by or with the same or any other agent, lender or group of
lenders.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"DBRS" means Dominion Bond Rating Service Limited and its
successors.
"DEBT" means (without duplication, including, without
limitation, duplication arising or existing because a Person and one or more
of its subsidiaries are or shall become either directly or indirectly liable
for the same Debt whether by virtue of guarantees, or joint, or joint and
several liability in respect of such Debt or otherwise) with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the
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assets of that Person or only to a portion of the assets of that Person), or
evidenced by bonds, notes, debentures or similar instruments or representing
the balance deferred and unpaid of the purchase price of any property
(excluding, without limitation, any balances that constitute accounts payable
or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and will also include, to the extent not otherwise
included (i) any Capitalized Lease Obligations of that Person, (ii)
obligations secured by a Lien to which any property or assets owned or held
by that Person are subject, whether or not the obligation or obligations
secured thereby will have been assumed by a third party, PROVIDED that, for
the purposes of determining the amount of Debt described in this clause, if
recourse with respect to that Debt is limited to such property or assets, the
amount of that Debt will be deemed to be the Fair Market Value of such
property or assets, (iii) guarantees of items of other Persons which would be
included within this definition for that other Person (whether or not such
items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (v) all Disqualified
Capital Stock issued by that Person with the amount of Debt represented by
that Disqualified Capital Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price
(for the purposes of this definition, "MAXIMUM FIXED REPURCHASE PRICE" of any
Disqualified Capital Stock which does not have a fixed repurchase price will
be calculated in accordance with the terms of that Disqualified Capital Stock
as if that Disqualified Capital Stock were repurchased on any date on which
Debt will be required to be determined pursuant to this Indenture and if that
price is based upon, or measured by, the fair market value of that
Disqualified Capital Stock, that price will be the Fair Market Value of that
Disqualified Capital Stock), (vi) obligations of that Person under any
Currency Agreement or any Interest Rate Agreement applicable to any of the
foregoing (if and to the extent such Currency Agreement or Interest Rate
Agreement obligations would appear as a liability upon a balance sheet of
that Person prepared in accordance with GAAP), and (vii) Attributable Debt.
The amount of Debt of any Person at any date will be the outstanding balance
at such date of all unconditional obligations as described above and, with
respect to contingent obligations, the maximum liability upon the occurrence
of the contingency giving rise to the obligation; PROVIDED that (a) the
amount outstanding at any time of any Debt issued with original issue
discount is the accreted value of that Debt at that time as determined in
conformity with GAAP and (b) Debt will not include any liability for federal,
provincial, state, local or other taxes. Notwithstanding any other provision
of the foregoing definition, any trade payable, deferred credit or accrued
liability arising from the purchase of goods or materials or for services
obtained in the ordinary course of business will not be deemed to be Debt of
the Company or any of its Restricted Subsidiaries for purposes of this
definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Debt otherwise included in the determination of
that amount will not also be included.
-10-
"DEFAULT" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"DESIGNATION" shall have the meaning set forth in the
definition of "Restricted Payment."
"DESIGNATION AMOUNT" shall have the meaning set forth in the
definition of "Restricted Payment."
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of a
Person or a Restricted Subsidiary thereof which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(except, in each case, in accordance with a change of control provision,
which provision has substantially the same effect as Section 4.15 hereof), in
whole or in part, or is exchangeable into Debt on or prior to the final
maturity date of the Notes.
"DTC" means The Depository Trust Company, its nominee or
successor.
"EBITDA" means, with respect to any Person and its Restricted
Subsidiaries, for any period, an amount equal to (i) the sum, without
duplication, of (a) Consolidated Net Income for such period, MINUS any net
income (or PLUS any net loss) attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued), PLUS (b) the
provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing Consolidated Net Income
(MINUS any provision for taxes utilized in computing net loss under clause
(i)(a) of this definition to the extent such provision reduced net loss),
PLUS (c) Consolidated Interest Expense for such period, PLUS (d) depreciation
for such period on a consolidated basis, to the extent reducing Consolidated
Net Income, PLUS (e) amortization of goodwill, deferred charges and other
intangibles for such period on a consolidated basis, to the extent reducing
Consolidated Net Income, PLUS (f) any other non-cash items reducing
Consolidated Net Income for such period, MINUS (ii) all non-cash items
increasing Consolidated Net Income for such period, determined on a
consolidated basis in accordance with GAAP.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE SECURITIES" has the meaning provided in the
Registration Rights Agreement.
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"FAIR MARKET VALUE" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined by the Board of Directors
of the Company acting reasonably and in good faith and, in the case of
determination involving assets or property in excess of $5,000,000 shall be
evidenced by a resolution of the Board of Directors of the Company delivered
to the Trustee.
"GAAP" means generally accepted accounting principles in
Canada as in effect on August 14, 2001.
"GUARANTEE" means a guarantee of the Notes by a Guarantor
issued pursuant to the terms of this Indenture.
"GUARANTORS" means each Restricted Subsidiary of the Company
that hereafter becomes a Guarantor pursuant to this Indenture.
"HOLDER," "HOLDER" or "NOTEHOLDER" means the Person in whose
name a Note is registered on the Registrar's books.
"INCUR" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Debt or other obligation on the balance sheet of such Person (and
"INCURRENCE," "INCURRED," "INCURRABLE" and "INCURRING" shall have meanings
correlative to the foregoing); PROVIDED that a change in generally accepted
accounting principles in Canada that results in an obligation of such Person
that exists at such time becoming Debt shall not be deemed an incurrence of
such Debt.
"INDENTURE" means this Indenture as amended, restated or
supplemented from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking
firm or accounting firm of national reputation in the United States of
America or Canada (i) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect financial interest
in the Company or any of its Affiliates, and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified
to perform the task for which it is to be engaged.
"INITIAL PURCHASERS" means Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, RBC Dominion Securities Corporation,
Scotia Capital (USA) Inc., CIBC
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World Markets Corp., BMO Xxxxxxx Xxxxx Corp., HSBC Securities (USA) Inc. and
TD Securities (USA) Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) promulgated under the Securities Act.
"INTEREST PAYMENT DATE" means each semiannual interest payment
date on June 15 and December 15 of each year, commencing June 15, 2003.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement designed to protect the party
indicated therein against fluctuations in interest rates.
"INVENTORY" of a Person means all inventory of such Person,
including (i) all raw materials, work in process, parts, components,
assemblies, supplies and materials used or consumed by such Person's
business, (ii) all goods, wares and merchandise, finished or unfinished, held
for sale or lease and (iii) all goods returned or repossessed by such Person.
"INVESTMENT GRADE" means (i) BBB- or above, in the case of S&P
(or its equivalent under any successor Rating Categories of S&P), and Baa3 or
above, in the case of Moody's (or its equivalent under any successor Rating
Categories of Moody's), or (ii) the equivalent in respect of the Rating
Categories of any Rating Agencies substituted for S&P or Moody's.
"INVESTMENTS" means (without duplication), with respect to any
Person, directly or indirectly, any advance (or other extension of credit),
account receivable (other than an account receivable arising in the ordinary
course of business of such Person), loan or capital contribution to (by means
of transfers of cash or other Property to others, payments for Property or
services for the account or use of others or otherwise), any guarantee of any
obligations or Debt of any other Person, the purchase of any Capital Stock,
bonds, notes, debentures, partnership or joint venture interests or other
securities of, the acquisition, by purchase or otherwise, of all or
substantially all of the business or assets or stock or other evidence of
beneficial ownership of, or interest in any Person or the making of any
investment in any Person. Investments shall exclude (i) extensions of trade
credit to customers and advances in respect of commissions and travel and
similar expenses to officers and employees, in each case made in the ordinary
course of business and (ii) the repurchase of securities of any Person by
such Person. For the purposes of Section 4.07 hereof, the amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investments by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, reduced by the
payment of dividends or distributions in connection with
-13-
such Investment or any other amounts received in respect of such Investment;
PROVIDED that no such payment of dividends or distributions or receipt of any
such other amounts shall reduce the amount of any Investment if such payment
of dividends or distributions or receipt of any such amounts would be
included in Consolidated Net Income. In determining the amount of any
Investment involving the transfer of any property or assets other than cash,
such property or assets shall be valued at its or their Fair Market Value at
the time of such transfer, as determined in good faith by the Board of
Directors of the Person making such transfer.
"ISSUE DATE" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"LIEN" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
priority, or other security agreement of any kind or nature whatsoever on or
with respect to such property or assets (including without limitation, any
Capitalized Lease Obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"MATERIAL SUBSIDIARY" means, at any date of determination, (i)
any Restricted Subsidiary that, together with its Subsidiaries that
constitute Restricted Subsidiaries (a) for the most recent fiscal year of the
Company accounted for more than 5.0% of the consolidated revenues of the
Company and the Restricted Subsidiaries or (b) as of the end of such fiscal
year, owned more than 5.0% of the consolidated assets of the Company and the
Restricted Subsidiaries, all as set forth on the consolidated financial
statements of the Company and the Restricted Subsidiaries for such year
prepared in conformity with GAAP, and (ii) any Restricted Subsidiary which,
when aggregated with all other Restricted Subsidiaries that are not otherwise
Material Subsidiaries and as to which any event described in clause (8) of
Section 6.01 hereof has occurred, would constitute a Material Subsidiary
under clause (i) of this definition.
"MATURITY DATE" means June 15, 2011.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its
successors.
"NET INCOME" means, with respect to any Person, for any
period, the net income (loss) of such Person determined in accordance with
GAAP and in accordance with clause (vii) of the definition of Consolidated
Net Income.
"NON-U.S. PERSON" means a Person who is not a U.S. person, as
defined in Regulation S.
-14-
"NOTES" means the 8-5/8% Series C Senior Notes due 2011 issued
by the Company, including, without limitation, the Private Exchange
Securities, if any, and the Exchange Securities, treated as a single class of
securities, as amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to this Indenture.
"OFFERING" means the offering pursuant to the Offering
Memorandum of the Notes to be issued on the Issue Date.
"OFFERING MEMORANDUM" means the Offering Memorandum dated May
8, 2003 pursuant to which the Notes issued on the Issue Date were offered.
"OFFICER," with respect to any Person (other than the
Trustee), means the Chairman of the Board of Directors, Chief Executive
Officer, the President, any Vice President and the Chief Financial Officer,
the Controller, the Treasurer or the Secretary of such Person, or any other
officer of such Person designated by the Board of Directors of such Person
and set forth in an Officers' Certificate delivered to the Trustee.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person
that shall comply with applicable provisions of this Indenture.
"OPINION OF COUNSEL" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel, which
counsel is reasonably acceptable to the Trustee, including the matters
required by Section 11.05 hereof and delivered to the Trustee.
"OTHER SENIOR NOTES" means the 10% Notes and the 8-5/8% Senior
Notes due 2011 issued on August 14, 2001.
"PACIFICA" means Pacifica Papers Inc., a Canadian company that
amalgamated with Norske Xxxx Canada Limited to form the Company on September
1, 2001.
"PERMITTED DEBT" means:
(i) Debt of the Company or a Guarantor arising under or in
connection with the Credit Facilities in an aggregate principal
amount at any time outstanding not to exceed the greater of (a)
$725,000,000 and (b) the sum of: (1) 75.0% of the book value of
Accounts Receivable net of any allowance for doubtful accounts of
the Company and its Restricted Subsidiaries as of the last fiscal
quarter for which financial statements are prepared, plus (2) 50.0%
of the book value of Inventory at the lower of cost or net
realizable value net of any allowance for obsolescence of the
Company and its Restricted Subsidiaries as of the last fiscal
quarter for which financial statements are prepared, plus (3)
$290,000,000;
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(ii) Debt under the Notes and any Guarantees;
(iii) Debt of the Company owed to and held by any
Guarantor which is unsecured and subordinated in right of payment
to the payment and performance of the Company's obligations under
this Indenture and the Notes and Debt of any Restricted Subsidiary
owed to and held by the Company or another Guarantor; PROVIDED that
(a) any sale or other disposition of any Debt of the Company or any
Restricted Subsidiary referred to in this clause (iii) to a Person
(other than the Company or a Guarantor), (b) any sale or other
disposition of Capital Stock of any Guarantor which holds Debt of
the Company or another Restricted Subsidiary such that such
Guarantor ceases to be a Guarantor of the Company, and (c) the
Designation of a Guarantor that holds Debt of the Company or any
other Restricted Subsidiary as an Unrestricted Subsidiary, shall be
deemed to be an incurrence of Debt not constituting Permitted Debt
by the issuer of such Debt;
(iv) Purchase Money Debt and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business in
an aggregate principal amount outstanding not to exceed, together
with all other Debt outstanding under this clause (iv), at the time
of any such incurrence and after giving PRO FORMA effect thereto,
5.0% of the consolidated tangible assets of the Company and its
Restricted Subsidiaries as of the end of the most recent fiscal
quarter for which consolidated financial statements are available
ending on or prior to the date of determination;
(v) Interest Rate Agreements relating to Debt of the
Company or any Restricted Subsidiary (which Debt (a) bears interest
at fluctuating interest rates and (b) is otherwise permitted to be
incurred pursuant to Section 4.06 hereof); PROVIDED that the
notional principal amount of such Interest Rate Agreements, at the
time of the incurrence thereof, does not exceed the principal
amount of the Debt to which such Interest Rate Agreements relate;
(vi) Debt under Currency Agreements; PROVIDED that in the
case of Currency Agreements which relate to Debt, such Currency
Agreements do not increase the principal amount of Debt of the
Company and its Restricted Subsidiaries outstanding other than as a
result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities or compensation payable thereunder;
(vii) Debt of the Company or any Restricted Subsidiary in
respect of reimbursement obligations relating to undrawn standby
letters of credit issued for the account of the Company of such
Restricted Subsidiary, as the case may be, in connection with
workers' compensation claims, self insurance or other similar
reimbursement type obligations;
(viii) Debt of the Company or any Restricted Subsidiary in
respect of bid, performance, surety and appeal bonds provided in
the ordinary course of business;
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(ix) additional Debt of the Company or the Guarantors not
to exceed $40,000,000 in aggregate principal amount at any one time
outstanding which may, but need not be, incurred under the Credit
Facilities;
(x) Refinancing Debt;
(xi) Debt of the Company or any of its Restricted
Subsidiaries in respect of accommodation guarantees for the benefit
of trade creditors of any such person, trade letters of credit,
standby letters of credit, performance bonds, bankers' acceptances
and surety bonds, in each case, incurred in the ordinary course of
business in an aggregate principal amount not in excess of
$5,000,000 at any one time outstanding; and
(xii) Debt outstanding on the Issue Date except for
indebtedness incurred pursuant to clause (i) or (ii) of this
definition.
"PERMITTED INVESTMENTS" means Investments made on or after the
Issue Date consisting of:
(i) Investments by the Company, or by a Restricted
Subsidiary thereof, in the Company or a Restricted Subsidiary;
(ii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such Investment
(a) such Person becomes a Restricted Subsidiary of the Company or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to,
or is liquidated into, the Company or a Restricted Subsidiary
thereof;
(iii) Investments in Cash Equivalents;
(iv) reasonable and customary loans and advances made to
employees not to exceed $10,000,000 in the aggregate at any one
time outstanding;
(v) an Investment that is made by the Company or a
Restricted Subsidiary thereof in the form of any Capital Stock,
bonds, notes, debentures or other securities that are issued by a
third party to the Company or such Restricted Subsidiary solely as
partial consideration for the consummation of an Asset Sale that is
permitted pursuant to Section 4.10 hereof;
(vi) Investments in Unrestricted Subsidiaries or in any
incorporated or unincorporated joint venture in an amount not to
exceed, together with the amount of all other Investments
outstanding under this clause (vi), at the time of such Investment
and after giving PRO FORMA effect thereto, 5.0% of the consolidated
tangible assets of the Company and its Restricted Subsidiaries as
of the end of the most recent fiscal quarter for which consolidated
financial statements are available ending on or prior to the date
of determination (with the amount of each Investment being measured
at the time made and without giving effect to subsequent changes in
value);
-17-
(vii) any acquisition of assets in exchange for the
Capital Stock (other than Disqualified Capital Stock) of the
Company; and
(viii) Investments in securities of trade creditors or
customers received in settlement of obligations that arose in the
ordinary course of business pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers.
"PERMITTED LIENS" means (i) Liens on Property or assets of, or
any Capital Stock of, any corporation existing at the time such assets are
acquired by the Company or any of its Restricted Subsidiaries, whether by
merger, amalgamation, consolidation, purchase of assets or otherwise;
PROVIDED (a) that such Liens are not created, incurred or assumed in
connection with, or in contemplation of, such assets being acquired by the
Company or its Restricted Subsidiaries and (b) that any such Lien does not
extend to or cover any Property, Capital Stock or Debt other than the
Property, Capital Stock or Debt being acquired, (ii) Liens securing
Refinancing Debt; PROVIDED that any such Lien does not extend to or cover any
Property, Capital Stock or Debt other than the Property, Capital Stock or
Debt securing the Debt so refunded, refinanced or extended, (iii) Liens in
favor of the Company or any Guarantor, (iv) Liens to secure Purchase Money
Debt that is otherwise permitted to be incurred under this Indenture;
PROVIDED that (a) any such Lien is created solely for the purpose of securing
Debt representing, or incurred to finance, refinance or refund, the cost
(including sales and excise taxes, installation and delivery charges and
other direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction) of the Property so acquired,
(b) the principal amount of the Debt secured by such Lien does not exceed
100% of such costs and expenses, and (c) such Lien does not extend to or
cover any Property other than such item of Property and any improvements on
such item, (v) statutory liens or landlords', carriers', warehousemen's,
unemployment insurance, surety or appeal bonds, mechanics', suppliers',
materialmen's, repairmen's or other like Liens imposed by law arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, (vi) Liens existing
on the Issue Date, (vii) Liens securing only the Notes or the Guarantees,
(viii) Liens for taxes, assessments or governmental charges not yet due or
that are being contested in good faith by appropriate proceedings; PROVIDED
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor, (ix) Liens securing
Capitalized Lease Obligations permitted to be incurred under clause (iv) of
the definition of "Permitted Debt"; PROVIDED that such Lien does not extend
to any Property other than that subject to the underlying lease, (x) Liens
securing Debt permitted to be incurred under clause (i) of the definition of
"Permitted Debt," (xi) Liens securing obligations under Interest Rate
Agreements, and Currency Agreements, in each case permitted to be incurred
under this Indenture, (xii) Liens created or deposits made to secure the
performance of tenders, bids, leases, statutory obligations, government
contracts, performance bonds and other obligations of a like nature incurred
in the ordinary course of business, (xiii) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs
duties in
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connection with the importation of goods, (xiv) other Liens securing
obligations incurred in the ordinary course of business, which obligations do
not exceed $1,000,000 in the aggregate at any one time outstanding, (xv)
Liens arising pursuant to Sale and Lease-Back Transactions entered into in
compliance with this Indenture, (xvi) Liens securing Debt permitted to be
incurred under clause (ix) or (xi) of the definition of "Permitted Debt,"
(xvii) Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to obligations that do
not exceed $7,500,000 at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary, (xviii) the Lien of
any judgment rendered which is being contested diligently and in good faith
by appropriate proceedings by the Company or any of its Restricted
Subsidiaries and which does not have a material adverse effect on the ability
of the Company and its Restricted Subsidiaries to operate the business or
operations of the Company, (xix) reservations, limitations, provisos and
conditions expressed in any original grants from the Crown which do not
materially adversely impair the use of the subject property by the Company or
a Restricted Subsidiary, (xx) servitudes, licenses, easements, rights-of-way
and rights in the nature of easements (including, without in any way limiting
the generality of the foregoing, servitudes, licenses, easements,
rights-of-way and rights in the nature of easements for sidewalks, public
ways, sewers, drains, gas, steam and water mains or electric light and power,
or telephone and telegraph conduits, poles, wires and cable) which do not in
the aggregate materially adversely impair the use of the subject property by
the Company or a Restricted Subsidiary or in respect to which the Company or
any of its Restricted Subsidiaries has made satisfactory arrangement for
relocation so that such use will not in the aggregate be materially and
adversely impaired, (xxi) zoning and building by-laws and ordinances,
municipal by-laws and regulations, and restrictive covenants, which do not
materially adversely interfere with the use of the subject property by the
Company or a Restricted Subsidiary, (xxii) with respect to personal property
only, Liens arising pursuant to registration under the Personal Property Act
(British Columbia) and similar legislation in other provinces or
jurisdictions exclusively relating to property and assets subject to
equipment leases which are not Capitalized Lease Obligations, (xxiii) Liens
securing the Company's obligations under the Credit Facilities and (xxiv) any
extension, renewal or replacement, in whole or in part, of any Lien described
in the foregoing clause (i), (ii), (iv), (vi), (ix) or (xxiii) of this
definition; PROVIDED that the principal amount secured by any such extension,
renewal or replacement shall not be increased and such lien shall not extend
to any other Property of the Company or its Subsidiaries other than such item
of Property originally covered by such Lien or by improvement thereon or
additions or accessions thereto.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government (including any agency or
political subdivision thereof).
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"PHYSICAL NOTES" means certificated Notes in registered form
in substantially the form set forth in EXHIBIT A.
"PREFERRED STOCK" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of other Capital Stock issued by such Person.
"PRIVATE EXCHANGE" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE EXCHANGE SECURITIES" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means a legend in the form set
forth in EXHIBIT B.
"PROPERTY" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"PUBLIC EQUITY OFFERING" means a public offering of shares of
Common Stock (however designated and whether voting or non-voting) and any
and all rights, warrants, receipts or options to acquire such Common Stock of
the Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act or pursuant to a prospectus filed with the
appropriate securities regulatory authorities in any province or territory of
Canada. For the purposes of this definition of "Public Equity Offering," any
offering of securities specified in this definition that (i) does not satisfy
the criteria required for a Public Equity Offering because such securities
are not sold pursuant to a registration statement filed with the Commission
in accordance with the Securities Act or pursuant to a prospectus filed with
the appropriate securities regulatory authorities in a province or territory
of Canada and (ii) becomes eligible for resale to the general public in any
province or territory of Canada or the United States of America within 90
days of the date on which such securities were initially sold, shall be
deemed to be a Public Equity Offering on and as of the date upon which such
securities become eligible for such resale.
"PURCHASE MONEY DEBT" means any Debt incurred by a Person to
finance the cost (including the cost of construction, installation or
improvement) of an item of Property, the principal amount of which Debt does
not exceed the sum of (i) the lesser of (a) the Fair Market Value of such
property or (b) 100% of such cost and (ii) reasonable fees and expenses of
such Person incurred in connection therewith.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
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"RATING AGENCIES" means (i) S&P, (ii) Xxxxx'x and (iii) if S&P
or Xxxxx'x or both shall not make a rating of the Notes publicly available, a
nationally recognized United States securities rating agency or agencies, as
the case may be, selected by the Company, which shall be substituted for S&P
or Xxxxx'x or both, as the case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories); (ii) with respect to Xxxxx'x, any of the following categories:
Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (iii) the
equivalent of any such category of S&P or Xxxxx'x used by another Rating
Agency. In determining whether the rating of the Notes has decreased by one
or more gradations, gradations within Rating Categories (+ and - for S&P; 1,
2 and 3 for Xxxxx'x; or the equivalent gradations for another Rating Agency)
shall be taken into account (e.g., with respect to S&P, a decline in rating
from BB+ to BB, as well as from BB- to B+, will constitute a decrease of one
gradation).
"RATING DATE" means the date which is 90 days prior to the
earlier of (i) a Change of Control and (ii) public notice of the occurrence
of a Change of Control or of the intention by the Company to effect a Change
of Control.
"RATING DECLINE" means the decrease (as compared with the
Rating Date) by one or more gradations within Rating Categories as well as
between Rating Categories of the rating of the Notes by a Rating Agency on,
or within 120 days after the earlier of the date of public notice of the
occurrence of a Change of Control or of the intention by the Company to
effect a Change of Control (which period shall be extended for so long as the
rating of the Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies).
"REDEMPTION DATE" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of
the Notes.
"REFINANCING DEBT" means Debt that replaces, refunds, renews,
refinances or extends any Debt of the Company or a Restricted Subsidiary
permitted to be incurred by the Company or its Restricted Subsidiaries
pursuant to Section 4.06 hereof (other than pursuant to clauses (i), (iv),
(v), (vi), (vii), (viii) and (ix) of the definition of "Permitted Debt"), but
only to the extent that (i) the Refinancing Debt is subordinated to the Notes
to at least the same extent as the Debt being replaced, refunded, renewed,
refinanced or extended, if at all, (ii) the Refinancing Debt is scheduled to
mature either (a) no earlier than the Debt being replaced, refunded, renewed,
refinanced or extended, or (b) after the maturity date of the Notes, (iii)
the portion, if any, of the Refinancing Debt that is scheduled to mature on
or prior to the maturity date of the Notes has a weighted average life to
maturity at the time such Refinancing Debt is incurred that is equal to or
greater than the weighted average life to maturity of the portion of the Debt
being replaced, refunded, renewed, refinanced or extended that is scheduled
to mature
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on or prior to the maturity date of the Notes, and (iv) such Refinancing Debt
is in an aggregate principal amount that is equal to or less than the sum of
(a) the aggregate principal amount then outstanding under the Debt being
replaced, refunded, renewed, refinanced or extended, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in excess
of preexisting prepayment provisions on such Debt being replaced, refunded,
renewed, refinanced or extended and (c) the amount of customary fees,
expenses and costs related to the incurrence of such Refinancing Debt.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated May 15, 2003 among the Company, the Guarantors and the
Initial Purchasers, as amended from time to time and, with respect to any
Notes issued pursuant to the second sentence of the first paragraph of
Section 2.01, any other registration rights agreement in connection with the
issuance of such Notes.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REPLACEMENT ASSETS" means (i) properties or assets (other
than cash or Cash Equivalents or any Capital Stock or other security) that
will be used or useful in the business of the Company or its Restricted
Subsidiaries as conducted on August 14, 2001, or in businesses reasonably
similar to or ancillary to the business of the Company or its Restricted
Subsidiaries as conducted on August 14, 2001 or (ii) Capital Stock of any
Person that will become on the date of acquisition thereof a Guarantor as a
result of such acquisition.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust
department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED NOTE" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
PROVIDED, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
"RESTRICTED PAYMENT" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment
on Capital Stock of the Company or any Restricted Subsidiary of the Company
or any payment made to the direct or indirect holders (in their capacities as
such) of Capital Stock of the Company or any Restricted Subsidiary of the
Company (other than (x) the amount of dividends or distributions payable
solely in Capital Stock (other than Disqualified Capital Stock) of the
Company, and (y) in the case of Restricted Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Restricted
Subsidiary of the Company), (ii) the purchase, redemption or other
acquisition or retirement for value of any Capital Stock of the Company or
any of its Restricted Subsidiaries (other than Capital Stock owned by the
Company or a Restricted Subsidiary of the Company), (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase, redemption or
other acquisition
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or retirement for value, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment, of any Debt of the Company or any
Guarantor which is subordinated in right of payment to the Notes or such
Guarantor's Guarantee, as the case may be (other than any such Debt acquired
in anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity in each case due within one year of the date of
acquisition), (iv) the making of any Investment other than a Permitted
Investment, (v) the designation of any Subsidiary of the Company as an
Unrestricted Subsidiary (a "DESIGNATION"); PROVIDED that the Designation of a
Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to
include the Designation of all of the Subsidiaries of such Subsidiary and
(vi) the forgiveness of any Debt of an Affiliate of the Company owed to the
Company or a Restricted Subsidiary of the Company. In determining the amount
of any Restricted Payment, cash distributed or invested shall be valued at
the face amount thereof and Property other than cash shall be valued at its
Fair Market Value, except that, in determining the amount of any Restricted
Payment made under clause (v) of this definition, the amount of such
Restricted Payment (the "DESIGNATION AMOUNT") shall be equal to the greater
of (1) the book value, or (2) the Fair Market Value, of the Company's
proportionate interest in such Subsidiary on such date.
"RESTRICTED SUBSIDIARY" means a Subsidiary of the Company
other than an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with
any Person providing for the leasing by the Company or any Restricted
Subsidiary of the Company of any real or tangible personal property, which
property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"SUBSIDIARY" of any specified Person means any corporation,
partnership, joint venture, limited liability company, association or other
business entity, whether now existing or hereafter organized or acquired, (i)
in the case of a corporation, of which more than 50% of the total voting
power of the Capital Stock entitled (without regard to the occurrence of any
contingency)
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to vote in the election of directors, officers or trustees thereof is held by
such first-named Person or any of its Subsidiaries; or (ii) in the case of a
partnership, joint venture, limited liability company, association or other
business entity, with respect to which such first-named Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise or if in accordance with
GAAP such entity is consolidated with the first-named Person for financial
statement purposes; PROVIDED that for greater certainty, the term
"Subsidiary" shall not include Xxxxxx River Energy Inc. or Xxxxxx River
Energy Limited Partnership.
"TAXES" means any present or future tax, duty, levy, impost,
assessment or other government charge (including penalties, interest and any
other liabilities related thereto) imposed or levied by or on behalf of a
Taxing Authority.
"TAXING AUTHORITY" means any government or any political
subdivision, state or province or territory of a Taxing Jurisdiction or any
authority or agency therein or thereof having power to tax.
"TAXING JURISDICTION" means Canada or any other jurisdiction
in which the Company or any Guarantor is organized or resident for tax
purposes or conducts business, or from which or through which any payment is
made, or any political subdivision thereof or therein.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
xx.xx. 77aaa-77bbbb) as in effect on the date of this Indenture.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of an
Unrestricted Subsidiary and (ii) any Subsidiary of the Company which is
classified after August 14, 2001 as an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of the Company; PROVIDED that a
Subsidiary may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with Section 4.07 hereof; PROVIDED FURTHER
that the Board of Directors of the Company may not designate any Subsidiary
of the Company to be an Unrestricted Subsidiary if, after such designation,
such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any
property of, any Restricted Subsidiary which is not a Subsidiary of the
Subsidiary to be so designated. The Trustee shall be given prompt notice by
the Company of each resolution adopted by the Board of Directors of the
Company under this provision, together with a copy of each such resolution
adopted.
"U.S." and "UNITED STATES" means the United States of America,
its territories and possessions, any state of the United States, and the
District of Columbia.
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"U.S. GOVERNMENT OBLIGATIONS" means (a) securities that are
direct obligations of the United States of America, direct obligations of the
Federal Home Loan Mortgage Corporation or direct obligations of the Federal
National Mortgage Association, for the payment of which its full faith and
credit are pledged, or (b) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt; PROVIDED that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or a specific
payment of principal or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depository receipt.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or similar requirements of law) of which are owned,
directly or indirectly, by the Company or another Wholly Owned Restricted
Subsidiary.
SECTION 1.02 OTHER DEFINITIONS.
The definitions of the following terms may be found in the
sections indicated as follows:
TERM DEFINED IN SECTION
---- ------------------
"actual knowledge"..................................................... 7.02
"Additional Amounts"................................................... 4.16
"Affiliate Transaction"................................................ 4.09(a)
"Asset Sale Proceeds Measurement Date"................................. 4.10(a)
"Business Day"......................................................... 11.07
"Change of Control Offer".............................................. 4.15(a)
"Change of Control Payment Date"....................................... 4.15(b)
"Change of Control Purchase Price"..................................... 4.15(a)
"Clearstream".......................................................... 2.16(a)
"Covenant Defeasance".................................................. 9.03
"Deficiency"........................................................... 4.10(a)
"Documentary Taxes..................................................... 4.16
"DTC Agent Members".................................................... 2.16(a)
"Euroclear"............................................................ 2.16(a)
"Events of Default".................................................... 6.01
"Excess Proceeds Offer"................................................ 4.10(a)
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TERM DEFINED IN SECTION
---- ------------------
"Excluded Holder"...................................................... 4.16
"Global Notes"......................................................... 2.16(a)
"Legal Defeasance"..................................................... 9.02
"Legal Holiday"........................................................ 11.07
"Offer Period"......................................................... 4.10(c)
"Other Notes".......................................................... 2.02
"Paying Agent"......................................................... 2.04
"Register"............................................................. 2.04
"Registrar"............................................................ 2.04
"Regulation S Global Note"............................................. 2.16(a)
"Regulation S Notes"................................................... 2.02
"Restricted Global Note"............................................... 2.16(a)
"Rule 144A Notes"...................................................... 2.02
"25% Available Asset Sale Proceeds".................................... 4.10(b)
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for
this Indenture to be qualified under the TIA is incorporated by reference in
and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"INDENTURE SECURITY" means any of the Notes.
"INDENTURE SECURITYHOLDER" means a Holder or Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR ON THE INDENTURE SECURITIES" means the Company,
any Guarantor or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by a rule
of the Commission and not otherwise defined herein have the meanings therein
assigned to them.
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SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and in the
plural include the singular;
(d) words used herein implying any gender shall apply
to all genders;
(e) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or subsection;
(f) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with the
definition of GAAP set forth in Section 1.01;
(g) "U.S. Dollars," "United States Dollars" and "US$" each
refer to United States Dollars, or such other money of the United
States that at the time of payment is legal tender for payment of
public and private debts; and "$" and "Cdn $" each refer to Canadian
Dollars, or such other money of Canada that at the time of payment
is legal tender for payment of public and private debts; and
(h) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with
respect to any Note, such mention shall be deemed to include mention
of the payment of Additional Interest to the extent that, in such
context, Additional Interest is, was or would be payable in respect
thereof.
ARTICLE TWO
THE NOTES
SECTION 2.01 AMOUNT OF NOTES.
The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount of US$150,000,000 upon receipt
of a written order of the Company in the form of an Officers' Certificate of
the Company. Thereafter, subject to
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compliance with Section 4.06, at any time and from time to time, the Trustee
shall authenticate Notes having identical terms (except as to issue price) in
an unlimited amount upon a written order of the Company in the form of an
Officers' Certificate of the Company. In each case, such written order shall
specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated.
Upon receipt of a Company Request and an Officers' Certificate
of the Company certifying that a registration statement relating to an
exchange offer specified in the Registration Rights Agreement is effective
under the Securities Act and that the conditions precedent to a Private
Exchange thereunder have been met, the Trustee shall authenticate an
additional series of Notes for issuance in exchange for the Notes and any 8
5/8% Senior Notes issued on August 14, 2001, tendered for exchange pursuant
to such exchange offer registered under the Securities Act or pursuant to a
Private Exchange. Such additional series of Notes issued in such exchange
shall be deemed to be a single series of Notes outstanding under this
Indenture. Exchange Securities or Private Exchange Securities may have such
distinctive series designations and such changes in the form thereof as are
specified in the Company Request referred to in the preceding sentence.
SECTION 2.02 FORM AND DATING.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in EXHIBIT A,
which is incorporated in and forms a part of this Indenture. The Notes may
have notations, legends or endorsements required by law, rule or usage to
which the Company is subject. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in
reliance on Rule 144A ("RULE 144A NOTES") shall bear the Private Placement
Legend and include the form of assignment set forth in EXHIBIT B, Notes
offered and sold in offshore transactions in reliance on Regulation S
("REGULATION S NOTES") shall bear the Private Placement Legend and include
the form of assignment set forth in EXHIBIT B. Notes transferred pursuant to
Section 2.17(a) ("OTHER NOTES") shall be represented by a Physical Note
bearing the Private Placement Legend. Each Note shall be dated the date of
its authentication. The Notes shall be issuable only in registered form
without coupons in denominations of US$1,000 and any integral multiple of
US$1,000.
Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, Exchange Securities issued by the Company
shall be substantially in the form set forth in EXHIBIT A (but shall not
contain paragraph 10 thereof).
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the
extent applicable, the Company, any Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and agree to be bound thereby. However, to the extent any
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provision of the Notes conflicts with the provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
SECTION 2.03 EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Request
for authentication and delivery of such Notes, and the Trustee, in accordance
with such Company Request, shall authenticate and deliver such Notes.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Note to the Trustee for cancellation as provided in Section 2.12, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Upon prior notice to, and approval by (which approval shall
not be unreasonably withheld), the Company, the Trustee may appoint an
authenticating agent to authenticate the Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company and Affiliates of
the Company. Each Paying Agent is designated as an authenticating agent for
purposes of this Indenture.
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SECTION 2.04 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of
New York, State of
New
York) where Notes may be presented for registration of transfer or for
exchange (the "REGISTRAR"), and an office or agency where Notes may be
presented for payment (the "PAYING AGENT") and an office or agency where
notices and demands to or upon the Company, if any, in respect of the Notes
and this Indenture may be served. The Registrar shall keep a register (the
"REGISTER") of the names and address of the Holders and of the transfer and
exchange of the Notes. The Company may have one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. The
Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Company shall enter into an appropriate agency agreement,
which shall incorporate applicable provisions of the TIA, with any Agent that
is not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Agent for service of notices and demand (subject to Section
11.09 hereof) in connection with the Notes and this Indenture.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes or any
Guarantor), and the Company and the Paying Agent shall notify the Trustee in
writing of any default by the Company (or any other obligor on the Notes or
any Guarantor) in making any such payment. Money held in trust by the Paying
Agent need not be segregated except as required by law and in no event shall
the Paying Agent be liable for any interest on any money received by it
hereunder. The Company at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any Event of Default
specified in clause (1) or (2) of Section 6.01 hereof, upon written request
to the Paying Agent, require such Paying Agent to pay forthwith all money so
held by it to the Trustee and to account for any funds disbursed. Upon making
such payment, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
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SECTION 2.06 HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. Such list shall be in written form or any other
form capable of being converted into written form within a reasonable time.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least five Business Days before each Interest Payment Date, and at such
other times as the Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses
of the Holders. The Trustee may rely on the lists of Holders provided by the
Company.
SECTION 2.07 TRANSFER AND EXCHANGE.
Subject to Sections 2.16 and 2.17 hereof, when Notes are
presented to the Registrar with a request from the Holder of such Notes to
register a transfer or to exchange them for an equal principal amount of
Notes of other authorized denominations, the Registrar shall register the
transfer as requested. Every Note presented or surrendered for registration
of transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or its attorneys duly authorized in
writing. To permit registrations of transfers and exchanges, the Company
shall issue and execute and the Trustee shall authenticate new Notes
evidencing such transfer or exchange at the Registrar's request in accordance
with Section 2.03 hereof. No service charge shall be made to the Holder for
any registration of transfer or exchange. The Company may require from the
Holder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Section 2.11, 3.06, 4.10, 4.15 or 8.05 hereof (in which events the Company
shall be responsible for the payment of such taxes). The Registrar shall not
be required to exchange or register a transfer of any Note for a period of 15
days immediately preceding the mailing of notice of redemption of Notes to be
redeemed or of any Note selected, called or being called for redemption
except the unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the
Holder of such Global Note (or its agent), and that ownership of a beneficial
interest in a Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable U.S. federal or state securities laws or Canadian
provincial securities laws.
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Neither the Trustee nor the Registrar shall have any duty to
monitor the Company's compliance with or have any responsibility with respect
to the Company's compliance with any U.S. federal or state securities laws or
Canadian provincial securities laws.
SECTION 2.08 REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if (a) the Holder of such Note furnishes to
the Company and the Trustee evidence reasonably acceptable to them of the
ownership and the destruction, loss or theft of such Note and (b) the
requirements of Section 8-405 of the
New York Uniform Commercial Code (or
applicable provision at the time of such replacement) are met. If required by
the Trustee or the Company, an indemnity bond shall be posted, sufficient in
the judgment of both to protect the Company, any Guarantors, the Trustee or
any Paying Agent from any loss that any of them may suffer if such Note is
replaced. The Company may charge such Holder for the Company's reasonable
out-of-pocket expenses in replacing such Note and the Trustee may charge the
Company for the Trustee's expenses (including, without limitation, attorneys'
fees and disbursements) in replacing such Note. Every replacement Note shall
constitute a contractual obligation of the Company.
In case any such mutilated, destroyed, lost or stolen Note has
become, or will become within 30 days, due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.
SECTION 2.09 OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections
9.01 and 9.02 hereof, on or after the date on which the conditions set forth
in Section 9.01 or 9.02 hereof have been satisfied, those Notes theretofore
authenticated and delivered by the Trustee hereunder and (d) those described
in this Section 2.09 hereof as not outstanding. Subject to Section 2.10
hereof, a Note does not cease to be outstanding because the Company or one of
its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser in whose hands such
Note is a legal, valid and binding obligation of the Company.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, in its capacity as such, on any Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and principal with respect to the Notes
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payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.10 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice
of default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, Notes owned by the Company or any Person
directly or indirectly controlling or controlled by or under common control
with the Company shall be disregarded as though they were not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Notes as to
which the Trustee has received an Officers' Certificate of the Company
stating that such Notes are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee
established to the satisfaction of the Trustee the pledgee's right so to act
with respect to the Notes and that the pledgee is not the Company, a
Guarantor, any other obligor on the Notes or any of their respective
Affiliates.
SECTION 2.11 TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced in any authorized denomination. Temporary Notes shall be
substantially in the form of definitive Notes but may have insertions,
omissions, substitutions and other variations that the Company considers
appropriate for temporary Notes and that the Company shall have identified to
the Trustee in writing. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes. Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as definitive Notes.
SECTION 2.12 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes and deliver a certificate of destruction thereof to the
Company unless the Company directs the Trustee in writing to deliver canceled
Notes to the Company. The
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Company may not reissue or resell, or issue new Notes to replace, Notes that
the Company has redeemed or paid, or that have been delivered to the Trustee
for cancellation.
SECTION 2.13 DEFAULTED INTEREST.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner, plus (to the extent
permitted by law) any interest payable on the defaulted interest, in
accordance with paragraph 1 of the Notes, to the Persons who are Holders on a
subsequent special record date, which date shall be at least five Business
Days prior to the payment date. The Company shall fix such special record
date and payment date in a manner satisfactory to the Trustee. At least 10
days before such special record date, the Company shall mail to each Holder a
notice that states the special record date, the payment date and the amount
of defaulted interest, and interest payable on defaulted interest, if any, to
be paid. The Company may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Notes may be listed and, upon such notice as
may be required by such exchange, if, after written notice given by the
Company to the Trustee of the proposed payment pursuant to this sentence,
such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.14 CUSIP NUMBER.
The Company in issuing the Notes may use one or more "CUSIP"
or "ISIN" numbers, and if so, each such CUSIP or ISIN number shall be
included in notices of redemption or exchange as a convenience to Holders;
PROVIDED that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP or ISIN number printed in the notice
or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly
notify the Trustee of any such CUSIP or ISIN number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP or
ISIN number.
SECTION 2.15 DEPOSIT OF MONEYS.
Prior to 10:00 a.m.,
New York City time, on each Interest
Payment Date and the Maturity Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments due on such Interest Payment Date or the Maturity Date, as the case
may be, in a timely manner which permits the Trustee to remit payment to the
Holders on such Interest Payment Date or the Maturity Date, as the case may
be. Except as otherwise provided herein, the principal and interest on Global
Notes shall be payable to DTC or the nominee of DTC, as the case may be, as
the sole registered owner and the sole holder of the Global Notes represented
thereby. The principal and interest on Physical Notes shall be payable,
either in person or by mail, at the office of the Paying Agent.
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SECTION 2.16 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Rule 144A Notes initially shall be represented by one or more
notes in registered, global form without interest coupons (collectively, the
"RESTRICTED GLOBAL NOTE"). Regulation S Notes initially shall be represented
by one or more notes in registered, global form without interest coupons
(collectively, the "REGULATION S GLOBAL NOTE," and, together with the
Restricted Global Note and any other global notes representing Notes, the
"GLOBAL NOTES"). The Global Notes shall each bear a legend as set forth in
EXHIBIT C. The Global Notes initially shall (i) be registered in the name of
DTC or the nominee of DTC, in each case, for credit to an account of DTC
Agent Members (or, in the case of the Regulation S Global Note, DTC Agent
Members (as defined below) holding for Euroclear System ("EUROCLEAR") and
Clearstream Banking Societe Anonyme ("CLEARSTREAM")), (ii) be delivered to
the Trustee as custodian for DTC and (iii) in the case of the Restricted
Global Notes or the Regulation S Global Notes, bear legends as set forth in
EXHIBIT B.
Neither members of, nor direct or indirect participants in,
DTC ("DTC AGENT MEMBERS") shall have any rights under this Indenture with
respect to any Global Note held on their behalf by DTC, or the Trustee as its
custodian, or under the Global Notes, and DTC may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and DTC Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer of
such Global Notes in whole, but not in part, to DTC, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes may
be transferred or exchanged for Physical Notes in accordance with the rules
and procedures of DTC, Euroclear and Clearstream and the provisions of
Section 2.17. In addition, a Global Note shall be exchangeable for Physical
Notes if (i) DTC notifies the Company that it is unwilling or unable to
continue as depository for such Global Note and the Company thereupon fails
to appoint a successor depository within 90 days of such event, (ii) the
Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of such Physical Notes, or (iii) there shall
have occurred and be continuing an Event of Default with respect to the Notes
which has not been waived pursuant to Section 6.04 of this Indenture. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any
approved denominations, requested by or on behalf of DTC (in accordance with
its customary procedures).
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Note to beneficial owners pursuant to
clause (b) of this
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Section 2.16, the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal
amount of the beneficial interest in such Global Note to be transferred, and
the Company shall execute, and the Trustee shall upon receipt of a written
order from the Company authenticate and make available for delivery, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of any Global Note as an
entirety to beneficial owners pursuant to clause (b) of this Section 2.16,
such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in
writing in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in a
Global Note that is a Restricted Note pursuant to clause (b), (c) or (d) of
this Section 2.16 shall, except as otherwise provided by clause (c) of
Section 2.17, bear the Private Placement Legend unless the Company determines
otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the
commencement of the Offering and the Issue Date (such period through and
including such 40th day, the "RESTRICTED PERIOD"), a beneficial interest in
the Regulation S Global Note may be held only through Euroclear or
Clearstream , as indirect participants in DTC, unless transferred to a Person
who takes delivery in the form of an interest in the Restricted Global Note
only upon receipt by the Trustee and the Company of a written certification
from the transferor to the effect that such transfer is being made (i)(A) to
a Person whom the transferor reasonably believes is a Qualified Institutional
Buyer in a transaction meeting the requirements of Rule 144A or (B) pursuant
to another exemption from the registration requirements under the Securities
Act which is accompanied by an Opinion of Counsel regarding the availability
of such exemption and (ii) in accordance with all applicable securities laws
of any state of the United States, the provinces of Canada or any other
jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee (i) a
written certificate to the effect that such transfer is being made in
accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available)
and that, if such transfer occurs prior to the expiration of the Restricted
Period, the interest transferred will be held immediately thereafter through
Euroclear or Clearstream and (ii) at the option of the Trustee and the
Company, an Opinion of Counsel reasonably satisfactory to the Trustee and the
Company to the effect that such transfer is in accordance with Regulation S
or Rule 144, as the case may be.
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(h) Any beneficial interest in a Global Note that is transferred
to a Person who takes delivery in the form of an interest in another Global
Note shall, upon transfer, cease to be an interest in such Global Note and
become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as
it remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including DTC Agent Members and Persons that may hold
interests through DTC Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17 SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS AND
NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any
Note, whether or not such Note bears the Private Placement
Legend, if (A) the requested transfer is after the time period
referred to in Rule 144(k) under the Securities Act, or such
other date as such Note shall be freely transferable under Rule
144 as certified in an Officers' Certificate or (B) (1) in the
case of a transfer to an Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar and the Company a
certificate substantially in the form of EXHIBIT D hereto and,
at the request of the Registrar and the Company, an Opinion of
Counsel reasonably satisfactory to the Registrar and the Company
to the effect that such transfer is in accordance with the
Securities Act or (2) in the case of a transfer to a Non-U.S.
Person (including a QIB), the proposed transferor has delivered
to the Registrar and the Company a certificate substantially in
the form of EXHIBIT E hereto and, at the request of the
Registrar and the Company, an Opinion of Counsel reasonably
satisfactory to the Registrar or the Company to the effect that
such transfer is in accordance with the Securities Act and any
applicable securities laws of the Provinces of Canada; PROVIDED
that in the case of any transfer of a Note bearing the
Private Placement Legend for a Note not bearing the Private
Placement Legend, the Registrar has received an Officers'
Certificate authorizing such transfer and, at the request of the
Registrar and the Company, the proposed transferor shall deliver
an Opinion of Counsel reasonably satisfactory to the Registrar
and the Company to the effect that such transfer is in
accordance with the Securities Act; and
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(ii) if the proposed transferor is a DTC Agent Member
holding a beneficial interest in the Restricted Global Note, and
the proposed transferee is either a Non-U.S. Person who is
receiving a beneficial interest in the Regulation S Global Note
or any Person who requests delivery in the form of Physical
Notes, upon receipt by the Registrar of (A) the documents, if
any, required by clause (i) of this Section 2.17(a) and (B)
instructions given in accordance with DTC's (and Euroclear's or
Clearstream's, if applicable) and the Registrar's procedures,
whereupon (C) the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the
Restricted Global Note in an amount equal to the principal
amount of the beneficial interest in the Restricted Global Note
to be transferred, and (D) (I) with respect to transfers to a
Non-U.S. Person receiving a beneficial interest in the
Regulation S Global Note, the Registrar shall reflect on its
books and records the date and an increase in the principal
amount of the Regulation S Global Note in an amount equal to the
principal amount of the beneficial interest in the Restricted
Global Note transferred or (II) with respect to a Person who
requests delivery in the form of Physical Notes, the Company
shall execute and the Trustee shall authenticate and make
available for delivery one or more Physical Notes of like tenor
and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a Restricted
Note to a QIB (excluding transfers to Non-U.S. Persons):
(i) (A) if the Restricted Note consists of Physical
Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked
the box provided for on such Holder's Note stating, or has
otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided
on such Holder's Note stating, or has otherwise advised the
Company and the Registrar in writing, that such transferee
represents and warrants that it is purchasing the Note for its
own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the
transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule
144A, and (B) if the Restricted Note consists of an interest in
the Restricted Global Note, unless otherwise
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provided in this Indenture, the transfer of such interest may only
be effected through the book-entry system maintained by the
Depository; and
(ii) if the proposed transferee is a DTC Agent Member,
and the Notes to be transferred consist of Physical Notes which
after transfer are to be evidenced by an interest in the
Restricted Global Note, upon receipt by the Registrar of
instructions given in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the
Restricted Global Note in an amount equal to the principal
amount of the Physical Notes to be transferred, and the Trustee
shall cancel the Physical Notes so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the registration of a
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the registration of a transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement Legend unless (i) it
has received the Officers' Certificate required by paragraph (a)(i)(A) of
this Section 2.17, (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
(d) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges and agrees to the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and further agrees that it will transfer such Note
only as provided in this Indenture.
(e) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms
and Conditions Governing Use of Euroclear" and the "Management Regulations"
and "Instructions to Participants" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes that are
held by DTC Agent Members through Euroclear or Clearstream.
The Registrar shall retain for a period of three years, copies
of all letters, notices and other written communications received pursuant to
Section 2.16 hereof or this Section 2.17. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to
the Registrar.
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SECTION 2.18 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
For the purposes of the Interest Act (Canada) where any
interest payable hereunder or under the Notes is expressed to be computed on
the basis of a 360-day year of twelve 30-day months, the annual rate of
interest to which such stated rate is equivalent is calculable by
determining, on the following basis for the relevant period, the amount of
interest accruing during such period and expressing such amount as a
percentage of the outstanding principal multiplied by the number of days in
such period and divided by the number of days in the year (being 365 or 366,
as the case may be)
(a) for any complete calendar month in respect of which such rate
is applicable, the stated rate
(i) multiplied by the actual number of days in the year
in which such month falls and divided by the actual number of days in the
month, and
(ii) multiplied by 30 and divided by 360, and
(b) for any part of a calendar month in respect of which such
rate is applicable, the stated rate multiplied by the actual number of days
in any applicable year, being 365 or 366, as the case may be and divided by
360.
ARTICLE THREE
REDEMPTION
SECTION 3.01 ELECTION TO REDEEM; NOTICES TO TRUSTEE.
--------------------------------------
If the Company elects to redeem Notes pursuant to Section 3.07
or 3.08 of this Indenture, at least 45 days prior to the Redemption Date
(unless a shorter notice shall be agreed to in writing by the Trustee) but
not more than 65 days before the Redemption Date, the Company shall notify
the Trustee in writing of the Redemption Date, the principal amount of Notes
to be redeemed and the redemption price, and deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with the
conditions contained in Section 3.07 or 3.08 of this Indenture. Notice given
to the Trustee pursuant to this Section 3.01 may not be revoked after the
time that notice is given to Holders pursuant to Section 3.03 hereof.
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SECTION 3.02 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of
such exchange or, if the Notes are not so listed, either on a PRO RATA basis,
by lot or in such other manner as the Trustee shall deem fair and equitable;
PROVIDED, HOWEVER, that if a partial redemption is made with the proceeds of
a Public Equity Offering, selection of the Notes or portions thereof for
redemption shall be made by the Trustee only on a PRO RATA basis or on as
nearly a PRO RATA basis as is practicable (subject to DTC procedures), unless
such method is otherwise prohibited. The Trustee shall promptly notify the
Company of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
The Trustee may select for redemption portions of the principal of the Notes
that have denominations larger than US$1,000. Notes and portions thereof the
Trustee selects shall be redeemed in amounts of US$1,000 or whole multiples
of US$1,000. For all purposes of this Indenture unless the context otherwise
requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his
or her last address as the same appears on the registry books maintained by
the Registrar pursuant to Section 2.04 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP or ISIN numbers thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium, if any, and
accrued and unpaid interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
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(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date;
(7) the provision of this Indenture pursuant to which the Notes
called for redemption are being redeemed;
(8) the aggregate principal amount of Notes that are being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice
or printed on the Notes.
At the Company's written request made at least two Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Company's name and at the Company's sole
expense; PROVIDED, HOWEVER, that the Company shall deliver to the Trustee at
least 45 days prior to the Redemption Date an Officers' Certificate
requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.03 hereof
is mailed, Notes called for redemption become due and payable on the
Redemption Date and at the redemption price, including premium, if any, plus
accrued and unpaid interest to the Redemption Date. Upon surrender to the
Paying Agent, such Notes shall be paid at the redemption price, including
premium, if any, plus accrued and unpaid interest to the Redemption Date;
PROVIDED that if the Redemption Date is after a regular record date and on or
prior to the Interest Payment Date, the accrued interest shall be payable to
the Holder of the redeemed Notes registered on the relevant record date;
PROVIDED, FURTHER, that if a Redemption Date is a Legal Holiday, payment
shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business
Day.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m.,
New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in
immediately available funds money sufficient to pay the redemption price of,
including premium, if any, and accrued and unpaid interest on all Notes to be
redeemed on that date other than Notes or portions thereof called for
redemption on that date which have been delivered by the Company to the
Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued and unpaid
interest on Notes called for
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redemption shall have been deposited with the Paying Agent in accordance with
the preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of, premium, if any, and, subject to the
first proviso in Section 3.04 hereof, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note surrendered for redemption shall
not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any
interest not paid on such unpaid principal, in each case, at the rate and in
the manner provided in the Notes.
SECTION 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for the Holder thereof a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
The Company, at its option, may redeem the Notes, in whole at
any time, or in part from time to time, in each case, on or after June 15,
2006, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount thereof) set forth
below, together, in each case, with accrued and unpaid interest to the
Redemption Date, if redeemed during the twelve month period beginning on June
15 of each year listed below:
YEAR REDEMPTION PRICE
---- ----------------
2006....................................... 104.313%
2007....................................... 102.875%
2008....................................... 101.438%
2009 and thereafter........................ 100.000%
Notwithstanding the foregoing, the Company, at its option, may
redeem in the aggregate up to 35% of the original principal amount of Notes at
any time and from time to time prior to June 15, 2004 at a redemption price
equal to 108.625% of the aggregate principal amount so redeemed, plus accrued
and unpaid interest to the Redemption Date, out of the net cash proceeds of one
or more Public Equity Offering; PROVIDED that at least 65% of the aggregate
principal amount of Exchange Securities and any Notes that have not been
exchanged for Exchange Securities remains outstanding immediately after the
occurrence of any such redemption and that any such redemption occurs within 90
days following the closing of any such Public Equity Offering.
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SECTION 3.08 TAX REDEMPTION.
The Notes are redeemable, in whole but not in part, at the
option of the Company at any time, upon not less than 30 nor more than 60
calendar days' prior written notice, mailed by first class mail to each
Holder at its last address appearing in the register of Notes maintained by
the Registrar, at 100% of the principal amount thereof, plus accrued and
unpaid interest thereon to the Redemption Date, if the Company or any
Guarantor is or would become obligated to pay, on the next date on which any
amount would be payable with respect to the Notes or the Guarantees, any
Additional Amounts as a result of a change in, or amendment to, the laws (or
any regulations promulgated thereunder) of any Taxing Jurisdiction, or any
changes in, or amendment to, any official position regarding the application
or interpretation of such laws or regulations, which change or amendment is
announced on or after the Issue Date; PROVIDED that the Company or such
Guarantor determines, in its business judgment, that the obligation to pay
such Additional Amounts cannot be avoided by the use of reasonable measures
available to the Company or such Guarantor (not including substitution of the
obligor under the Notes); and PROVIDED, FURTHER, that (i) no such notice of
redemption may be given earlier than 90 days prior to the earliest date on
which the Company or such Guarantor would but for such redemption be
obligated to pay such Additional Amounts or later than 270 days after the
Company or such Guarantor first becomes liable to pay any Additional Amounts
as a result of any changes in or amendments to laws, regulations or official
positions described above and (ii) at the time such notice is given, the
Company's or such Guarantor's obligation to pay such Additional Amounts
remains in effect.
Prior to the publication of any notice of redemption pursuant
to this provision, the Company will deliver to the trustee (a) an Officers'
Certificate stating that the Company is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions precedent
to the right of the Company so to redeem have occurred and (b) an opinion of
legal counsel qualified under the laws of the relevant jurisdiction to the
effect that the Company or such Guarantor has or will become obligated to pay
such Additional Amounts as a result of such amendment or change as described
above.
SECTION 3.09 PURCHASE OF NOTES.
The Company or any of its Subsidiaries shall have the right at
any time and from time to time to purchase Notes in the open market (which
shall include purchase from or through an investment dealer, investment bank
or firm holding membership in a stock exchange or the National Association of
Securities Dealers, Inc.) or by tender or by private contract or otherwise,
at any price, provided that the Company complies with any securities laws or
regulations applicable to any such purchase including, but not limited to
Rule 14e-1 under the Exchange Act.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Company shall pay the principal of and interest (including
all Additional Interest) on the Notes on the dates and in the manner provided
in the Notes and this Indenture. An installment of principal or interest
shall be considered paid on the date it is due if the Trustee or Paying Agent
(if other than the Company, a Subsidiary of the Company or any Guarantor)
holds on that date money designated for and sufficient to pay such
installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
installments of interest, to the extent lawful, at the rate specified in the
Notes.
SECTION 4.02 REPORTS TO HOLDERS.
Whether or not required by the rules and regulations of the
Commission, so long as the Notes are outstanding, the Company shall furnish
to the Trustee and, upon request, to the Holders all annual and quarterly
financial information that would be required to be contained in a filing with
the Commission on Forms 20-F, 40-F and 6-K, as applicable, if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect
to the annual financial information, a report on the audit of the financial
statements by the Company's independent accountants; PROVIDED, that (x) such
quarterly financial information shall be furnished within 60 days following
the end of each quarter of the Company and (y) such annual financial
information shall be furnished within 180 days following the end of the
fiscal year of the Company. In addition, whether or not required by the rules
and regulations of the Commission, the Company will file with or furnish to
the Commission a copy of all such information and reports with the Commission
for public availability (unless the Commission will not accept such a filing
or furnishing). In addition, the Company shall furnish to the Holders and to
prospective investors, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
so long as the Notes are not freely transferable under the Securities Act.
The Company, the Guarantors and their respective subsidiaries will also
comply with the other provisions of TIA ss.314(a).
SECTION 4.03 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company and any Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, or
plead (as a defense or otherwise) or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law which would prohibit or forgive the Company and any Guarantors
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from paying all or any portion of the principal of, premium, if any, and/or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture; and (to the extent that they may lawfully do so) the
Company and any Guarantors hereby expressly waive all benefit or advantage of
any such law, and covenant that they will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year and on or before 60 days after the end of
the first, second and third quarters of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during such fiscal year or fiscal quarter, as the case may be,
has been made under the supervision of the signing Officers with a view to
determining whether the Company and each Guarantor has kept, observed,
performed and fulfilled their obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge, the Company and each Guarantor has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he
or she may have knowledge and what action they are taking or propose to take
with respect thereto) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on account
of the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the
Company and any Guarantors are taking or propose to take with respect thereto.
(b) The Company and any Guarantors shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company and
any Guarantors are taking or propose to take with respect thereto.
(c) The Company's fiscal year currently ends on December 31. The
Company will promptly provide written notice to the Trustee of any change in
its fiscal year.
SECTION 4.05 TAXES.
The Company and any Guarantors shall, and shall cause each of
their Subsidiaries to, pay prior to delinquency all material taxes,
assessments, and governmental levies except as contested in good faith and by
appropriate proceedings.
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SECTION 4.06 LIMITATION ON ADDITIONAL DEBT.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, incur (as defined) any Debt
(including, without limitation, any Acquired Debt), except Permitted Debt and
except that, if no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of such Debt, the
Company or any Restricted Subsidiary may incur Debt (including any Acquired
Debt) if the Company's Consolidated Fixed Charge Coverage Ratio is at least 2.0
to 1.
Even if the Company's Consolidated Fixed Charge Coverage Ratio is
less than 2.0 to 1, the Company and its Restricted Subsidiaries may incur
Permitted Debt.
For purposes of determining compliance with this Section 4.06, in
the event that an item of Debt meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xii) of the
definition thereof or is entitled to be incurred pursuant to the first paragraph
of this Section 4.06, the Company shall classify such Debt in its sole
discretion, and such item of Debt will be treated as having been incurred
pursuant to only one of such clauses or pursuant to the first paragraph of this
Section 4.06. Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Debt, in each case in accordance
with the terms of the underlying Debt at its time of incurrence by the Company
or a Restricted Subsidiary, as the case may be, will not be deemed to be an
incurrence of Debt for purposes of this Section 4.06; PROVIDED that the
underlying Debt is incurred in accordance with the terms of this Indenture. Any
increase in the Canadian dollar equivalent of outstanding Debt of the Company or
any of its Restricted Subsidiaries denominated in a currency other than Canadian
dollars resulting from fluctuations in the exchange values of currencies shall
not be deemed to be an incurrence of Debt for purposes of this Section 4.06;
PROVIDED that the amount of Debt of the Company outstanding at any time shall be
the Canadian dollar equivalent of all such Debt of the Company outstanding at
such time.
SECTION 4.07 LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not make, and shall not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur US$1.00 of additional Debt (other than
Permitted Debt) pursuant to Section 4.06 hereof; and
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(c) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made after August
14, 2001 does not exceed (without duplication) (i) the sum of (A) 50% of
the Company's cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) for the
period beginning July 1, 2001 and ending on the last day of the fiscal
quarter immediately preceding the date of such proposed Restricted
Payment (treating such period as a single accounting period), and (B) the
10% Notes Income Adjustment Amount; (ii) 100% of the aggregate net cash
proceeds received by the Company from Capital Contributions or from the
issuance or sale after August 14, 2001 (other than to a Restricted
Subsidiary) of (A) Capital Stock (other than Disqualified Capital Stock)
of the Company or (B) any Debt or other securities of the Company that
are convertible into or exercisable or exchangeable for Capital Stock
(other than Disqualified Capital Stock) of the Company which have been so
converted, exercised or exchanged, as the case may be; (iii) without
duplication of any amounts included in subclause (i) of this clause (c),
so long as the Designation thereof was treated as a Restricted Payment
made after August 14, 2001, with respect to any Unrestricted Subsidiary
that has been redesignated as a Restricted Subsidiary after August 14,
2001 in accordance with the definition of "Restricted Subsidiary," the
Company's proportionate interest in an amount equal to the Fair Market
Value of the Company's interest in such Subsidiary; PROVIDED that such
amount shall not in any case exceed the Designation Amount with respect
to such Restricted Subsidiary at the time of its Designation; (iv) in the
case of the disposition or repayment of any Investment constituting a
Restricted Payment made after August 14, 2001, to the extent not
otherwise included in the Company's Consolidated Net Income, the amount
of cash proceeds (or Cash Equivalents) received by the Company or any
Restricted Subsidiary with respect to such Investment, net of any costs
of disposition and taxes paid or payable in connection with such
disposition or repayment; (v) to the extent not otherwise included in the
Company's Consolidated Net Income, the amount of the cash proceeds (or
Cash Equivalents) received by the Company or any Restricted Subsidiary
upon the sale of any Unrestricted Subsidiary after August 14, 2001, net
of any costs of disposition and taxes paid or payable in connection with
such sale; and (vi) $15,000,000. For purposes of determining the amount
expended for Restricted Payments under this clause (c), property other
than cash shall be valued at its Fair Market Value.
(d) The provisions of this Section 4.07 shall not prevent (i) the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
comply with the provisions of this Indenture; (ii) the repurchase,
redemption or other acquisition or retirement of any shares of Capital
Stock of the Company or Debt of the Company or any Guarantor subordinated
to the Notes or such Guarantor's Guarantee, as the case may be, by
conversion into, or by or in exchange for, shares of Capital Stock of the
Company
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(other than Disqualified Capital Stock), or out of the net cash proceeds
of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of other shares of Capital Stock of the
Company (other than Disqualified Capital Stock); PROVIDED that any
such net cash proceeds are excluded from clause (c)(ii) of this Section
4.07 for the purposes of this calculation (and were not included in
clause (c)(ii) of this Section 4.07 at any time); (iii) the redemption,
repayment or retirement of Debt of the Company or any Guarantor
subordinated to the Notes or such Guarantor's Guarantee, as the case may
be, in exchange for, by conversion into, or out of the net cash proceeds
of, (x) a substantially concurrent sale or incurrence of Debt of the
Company or such Guarantor, as the case may be (other than any Debt owed
to a Restricted Subsidiary), that is contractually subordinated in right
of payment to the Notes or such Guarantor's Guarantee, as the case may
be, to at least the same extent as the Debt being redeemed, repaid or
retired, or (y) a substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of shares of Capital Stock of the
Company; PROVIDED that any such net cash proceeds are excluded from
clause (c) (ii) of this Section 4.07 (and were not included therein at
any time); (iv) the retirement of any shares of Disqualified Capital
Stock of the Company by conversion into, or by exchange for, other shares
of Disqualified Capital Stock of the Company, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of other shares of Disqualified Capital Stock
of the Company; PROVIDED that any such net cash proceeds are excluded
from clause (c) (ii) of this Section 4.07 (and were not included in
clause (c) (ii) of this Section 4.07 at any time); and (v) the purchase,
redemption or other acquisition for value of shares of Capital Stock of
the Company (other than Disqualified Capital Stock) held by employees or
directors of the Company (or their estates or beneficiaries under their
estates) upon the death, retirement or termination of employment or
directorship of such employees or directors pursuant to the terms of an
employee benefit plan or other agreement approved by the Board of
Directors of the Company; PROVIDED that the aggregate cash consideration
paid, or distributions made, pursuant to this clause (v) do not exceed
$5,000,000 in the aggregate subsequent to August 14, 2001. In
calculating the aggregate amount of Restricted Payments made subsequent
to August 14, 2001 for purposes of clause (c) of this Section 4.07,
amounts expended pursuant to clauses (d)(i) and (d)(v) of this Section
4.07 shall be included in such calculation and amounts expended pursuant
to clauses (d)(ii), (d)(iii) and (d)(iv) of this Section 4.07 shall not
be included in such calculation; PROVIDED that amounts expended pursuant
to clause (d)(i) of this Section 4.07 will only be included if the
declaration thereof had not been counted in a prior period.
SECTION 4.08 LIMITATION ON LIENS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries, directly or indirectly, to, create, incur or otherwise
cause or suffer to exist or
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become effective any Liens (other than Permitted Liens) upon or with respect
to any property or assets of the Company or any of its Restricted
Subsidiaries, unless (i) if such Lien secures Debt which is ranked equally
and ratably with the Notes or any Guarantee, then the Notes or such
Guarantee, as the case may be, are secured on an equal and ratable basis with
the obligations so secured until such time as such obligations are no longer
secured by such Lien or the Lien is a Permitted Lien or (ii) if such Lien
secures Debt which is subordinated to the Notes or any Guarantee, then the
Notes or such Guarantee, as the case may be, are secured and the Lien
securing such other Debt shall be subordinated to the Lien granted to the
Holders at least to the same extent as such Debt is subordinated to the Notes
or such Guarantee, as the case may be, until such time as such obligations
are no longer secured by a Lien. The Company and Restricted Subsidiaries may
create, incur or cause or permit to exist Permitted Liens as described in the
definition of "Permitted Liens" of this Indenture.
SECTION 4.09 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (each an "AFFILIATE TRANSACTION") or extend,
renew, waive or otherwise modify the terms of any Affiliate Transaction
entered into prior to August 14, 2001, unless (i) such Affiliate Transaction
is between or among the Company and its Restricted Subsidiaries or between or
among Restricted Subsidiaries; or (ii) the terms of such Affiliate
Transaction are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than the terms which could reasonably be
obtained by the Company or such Restricted Subsidiary, as the case may be, at
such time in a comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction (or any series of related
Affiliate Transactions) involving an amount or having a Fair Market Value in
excess of $5,000,000 which is not permitted under clause (a)(i) of this
Section 4.09, the Company shall obtain a resolution of the disinterested
members of the Board of Directors of the Company certifying that they have
approved such Affiliate Transaction and determined that such Affiliate
Transaction complies with clause (a)(ii) of this Section 4.09. In addition,
in any Affiliate Transaction (or any series of related Affiliate
Transactions) involving an amount or having a Fair Market Value in excess of
$50,000,000 which is not permitted under clause (a)(i) of this Section 4.09,
the Company must obtain a written opinion from an Independent Financial
Advisor that such transaction or transactions are fair to the Company or such
Restricted Subsidiary, as the case may be, from a financial point of view.
(b) The provisions of Section 4.09(a) will not apply to (i) any
Restricted Payment made in compliance with Section 4.07 hereof, (ii) any
payment of customary and reasonable fees to directors of the Company, (iii)
any employment agreement or compensation arrangement in effect on August 14,
2001, or entered into thereafter by the
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Company or any of its Restricted Subsidiaries in the ordinary course of
business and consistent with the past practice of the Company and its
Restricted Subsidiaries, (iv) transactions in the ordinary course of business
pursuant to any pension, share or partnership unit option, profit sharing,
partnership unit or share appreciation rights or other employee benefit plan
or agreement (including insurance, indemnification and reimbursement plans
and arrangements for directors, officers and employees), (v) loans to
employees not to exceed $10,000,000 in aggregate amount at any one time
outstanding, or (vi) issuances of Capital Stock (other than Disqualified
Capital Stock) of the Company.
SECTION 4.10 LIMITATION ON ASSET SALES.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company
or such applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such sale or other disposition at least equal to
the Fair Market Value of the assets sold or otherwise disposed of; (ii) not
less than 80% of the consideration received by the Company or such applicable
Restricted Subsidiary, as the case may be, is in the form of (A) cash or Cash
Equivalents, or (B) Replacement Assets, and in each case set forth in
subclauses (A) and (B) of this clause (a)(ii), is received at the time of
such sale or other disposition; PROVIDED that the amount of (1) any Debt
(other than subordinated Debt) of the Company or any such applicable
Restricted Subsidiary that is actually assumed by the transferee in such
Asset Sale and from which the Company and its Restricted Subsidiaries are
fully and unconditionally released and (2) any securities received by the
Company or any such applicable Restricted Subsidiary which are converted into
cash or Cash Equivalents within ten Business Days of such Asset Sale (to the
extent of the cash or Cash Equivalents received), will be deemed to be cash
for purposes of this clause (a)(ii); and (iii) the Asset Sale Proceeds
received by the Company or such Restricted Subsidiary, as the case may be,
are applied, at the option of the Company or such Restricted Subsidiary, (A)
to prepay, repay or purchase indebtedness under the Credit Facilities or any
other secured Debt of the Company or such Restricted Subsidiary or the Other
Senior Notes; or (B) to an investment in properties and assets that are used
or are useful in the business of the Company or its Restricted Subsidiaries
or in businesses reasonably similar to or ancillary to the business of the
Company or its Restricted Subsidiaries as conducted at the time of such Asset
Sale; PROVIDED that (1) such investment occurs or (2) the Company or any such
Restricted Subsidiary enters into contractual commitments to so apply such
Asset Sale Proceeds, subject only to customary conditions (other than the
obtaining of financing), in each case, within 365 days following the receipt
of such Asset Sale Proceeds; or (C) if on such 365th day the Available Asset
Sale Proceeds exceed $15,000,000, the Company shall apply an amount equal to
the Available Asset Sale Proceeds to an offer to repurchase the Notes (and,
at its option, to an offer to repurchase other equal and ratable Debt), at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the purchase date (an "EXCESS
PROCEEDS OFFER"). If an Excess Proceeds Offer is not fully subscribed, the
Company may retain and use for general corporate
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purposes the portion (any such portion, a "DEFICIENCY") of the Available
Asset Sale Proceeds not required to repurchase Notes. Upon completion of any
Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be
reset to zero; PROVIDED that the amount of the 25% Available Asset Sale
Proceeds (as defined below) shall constitute Available Asset Sale Proceeds
for purposes of the first Excess Proceeds Offer that is made after August 14,
2006 (the "ASSET SALE PROCEEDS MEASUREMENT DATE").
(b) Even if the Company completes an Asset Sale, in no event shall the
Company use or be required to use Available Asset Sale Proceeds to purchase
more than 25% of the original aggregate principal amount of the Notes on or
prior to the Asset Sale Proceeds Measurement Date. If the aggregate Available
Asset Sale Proceeds (disregarding any resetting to zero as described in
paragraph (a) above) resulting from Asset Sales occurring on or prior to the
Asset Sale Proceeds Measurement Date, less any Deficiencies resulting from
any Excess Proceeds Offers made by the Company on or prior to such date,
exceed 25% of the original aggregate principal amount of the Notes (such
excess being the "25% AVAILABLE ASSET SALE PROCEEDS"), then the Company shall
make an Excess Proceeds Offer in accordance with the foregoing provisions (i)
promptly after the Asset Sale Proceeds Measurement Date, in the event the
amount of the 25% Available Asset Sale Proceeds exceeds $15,000,000 or (ii)
at such time as the amount of the 25% Available Asset Sale Proceeds together
with Available Asset Sale Proceeds realized after the Asset Sale Proceeds
Measurement Date exceeds $15,000,000, in the event the amount of the 25%
Available Asset Sale Proceeds is less than $15,000,000.
(c) If the Company is required to make an Excess Proceeds Offer, the
Company shall (i) notify the Trustee thereof at least five Business Days
prior to the commencement of the Excess Proceeds Offer and (ii) send by
first-class mail, postage prepaid, within 30 days following the date
specified in clause (a)(iii)(C) of this Section 4.10, a notice to the Trustee
and to each Holder, at the address appearing in the register maintained by
the Registrar, stating the information set forth below. The Excess Proceeds
Offer shall remain open for a period of 20 Business Days following its
commencement (the "OFFER PERIOD"). The notice, which shall govern the terms
of the Excess Proceeds Offer, shall state:
(1) that such Holders have the right to require the Company to apply
the Available Asset Sale Proceeds, subject to the limitations under
Section 4.10(b) hereof, to repurchase such Notes at a purchase price in
cash equal to 100% of the principal amount of the Notes, plus accrued and
unpaid interest, if any, to the purchase date;
(2) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10 and the length of time the Excess Proceeds Offer will remain
open;
(3) the purchase price and the purchase date (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed);
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(4) that any Note not tendered or accepted for payment will continue
to accrue interest;
(5) that, unless the Company defaults in a payment pursuant to the
Excess Proceeds Offer, any Notes accepted for payment pursuant to the
Excess Proceeds Offer shall cease to accrue interest after the expiration
of the Offer Period;
(6) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day preceding the
purchase date;
(7) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the expiration of the Offer Period,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing his election
to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Available Asset Sale Proceeds, the Company or the
Trustee shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of US$1,000, or integral multiples of US$1,000,
shall be purchased);
(9) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; PROVIDED that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of US$1,000 and integral multiples of US$1,000; and
(10) the calculations used in determining the amount of Available
Asset Sale Proceeds to be applied to the purchase of such Notes.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with an Excess Proceeds Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.10, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.10 by virtue thereof.
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SECTION 4.11 LIMITATION ON CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not (a) sell, pledge, hypothecate (other than
by Permitted Liens) or otherwise convey or dispose of any Capital Stock of a
Restricted Subsidiary of the Company or (b) permit any of its Restricted
Subsidiaries to issue any Capital Stock, other than to the Company or a Wholly
Owned Restricted Subsidiary of the Company if, as a result of such transaction,
such Restricted Subsidiary would cease to be a Restricted Subsidiary. The
foregoing restrictions shall not apply to an Asset Sale consisting of all of the
Capital Stock of a Restricted Subsidiary owned by the Company and its Restricted
Subsidiaries made in compliance with Section 4.10 hereof.
SECTION 4.12 LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) (i) pay dividends or
make any other distributions to the Company or any Restricted Subsidiary of the
Company (A) on its Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits or (ii) repay any Debt or any
other obligation owed to the Company or any Restricted Subsidiary of the
Company, (b) make loans or advances or capital contributions to the Company or
any of its Restricted Subsidiaries or (c) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) encumbrances or
restrictions existing on the Issue Date to the extent and in the manner such
encumbrances and restrictions are in effect on the Issue Date, (ii) encumbrances
or restrictions in the Credit Facilities, (iii) this Indenture, the Notes and
any Guarantees, (iv) applicable law, (v) any instrument governing Acquired Debt
as in effect at the time of such acquisition, which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person or the property or assets of the Person (including any
Subsidiary of the Person), so acquired, (vi) customary non-assignment provisions
in leases or other agreements entered in the ordinary course of business and
consistent with past practices, (vii) Refinancing Debt; PROVIDED that such
restrictions are not on the whole materially more restrictive than those
contained in the agreements governing the Debt being extended, refinanced,
renewed, replaced, defeased or refunded, (viii) restrictions in security
agreements or mortgages securing Debt of the Company or a Restricted Subsidiary
only to the extent such restrictions restrict the transfer of the property
subject to such security agreements and mortgages, (ix) restrictions with
respect to a Restricted Subsidiary of the Company pursuant to an agreement that
has been entered into for the sale or disposition of all or substantially all of
the Capital Stock or assets of such Restricted Subsidiary to be consummated in
accordance with the terms of this Indenture solely in respect of the Capital
Stock or assets to be sold or disposed of, (x) purchase money obligations for
property
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acquired in the ordinary course of business that impose restrictions of the
nature described in clause (c)(viii) of this Section 4.12 on the property so
acquired, (xi) any agreement for the sale of assets (including any Asset
Sale) that restricts transfers of such assets pending their sale, (xii)
secured Debt otherwise permitted to be incurred pursuant to the provisions of
the covenant described above under Section 4.08 that limits the right of the
debtor to dispose of the assets securing such Debt, (xiii) any encumbrance or
restriction contained in Purchase Money Debt to the extent that such
encumbrance or restriction (A) only restricts the transfer of the Property
financed with such Purchase Money Debt and (B) solely relates to the Property
financed with such Purchase Money Debt, or (xiv) restrictions on cash or
other deposits imposed by customers under contracts entered into in the
ordinary course of business.
SECTION 4.13 LIMITATION ON SUBSIDIARIES.
If (a) any Subsidiary guarantees the Other Senior Notes or (b)
the Company or any of its Restricted Subsidiaries transfers or causes to be
transferred any Property to, or organizes, acquires, invests in or otherwise
holds an Investment in, any Restricted Subsidiary that is not a Guarantor having
total consolidated assets with a book value in excess of $500,000, then such
Subsidiary, transferee or acquired or other Restricted Subsidiary shall (i)
execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
this Indenture in the form set forth in EXHIBIT F hereto, (ii) deliver to the
Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Restricted Subsidiary and constitutes
a legal, valid, binding and enforceable obligation of such Restricted Subsidiary
and (iii) execute such other documents and take such other actions as the
Trustee may reasonably require in order to evidence the Guarantee of such
Restricted Subsidiary and the agreement of such Restricted Subsidiary to be
bound by the Guarantee. Thereafter, such Restricted Subsidiary shall be a
Guarantor for all purposes of this Indenture.
SECTION 4.14 LEGAL EXISTENCE.
Subject to Article Five hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
legal existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; PROVIDED that the Company shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the
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Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.
SECTION 4.15 CHANGE OF CONTROL OFFER.
(a) Upon the occurrence of a Change of Control Triggering Event, the
Company shall be obligated to make an offer to purchase (the "CHANGE OF
CONTROL OFFER") all outstanding Notes at a purchase price (the "CHANGE OF
CONTROL PURCHASE PRICE") equal to 101% of the principal amount thereof, plus
accrued and unpaid interest thereon to the Change of Control Payment Date in
accordance with this Section 4.15.
(b) Within 30 days of the occurrence of a Change of Control
Triggering Event, the Company shall (i) cause a notice of the Change of
Control Offer to be sent at least once to the Dow Xxxxx News Service or
similar business news service in the United States and (ii) send by
first-class mail, postage prepaid, to the Trustee and to each Holder, at the
address appearing in the register of the Notes maintained by the Registrar, a
notice stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed (the "CHANGE OF CONTROL PAYMENT
DATE"));
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date;
(5) that Holders accepting the offer to have a Note purchased
pursuant to any Change of Control Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business
Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes the Holder delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Note purchased;
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(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; PROVIDED that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of US$1,000 and integral multiples of US$1,000;
(8) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so properly tendered and (iii) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the purchase price for such Notes, and the Company shall execute and issue, and
the Trustee shall promptly authenticate and mail to such Holder, a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered;
PROVIDED that each such new Note shall be issued in an original principal amount
in denominations of US$1,000 and integral multiples of US$1,000.
(c) (i) If the Company or any Restricted Subsidiary thereof
has issued any outstanding (A) Debt that is subordinated in right of payment
to the Notes or (B) Preferred Stock, and the Company or such Restricted
Subsidiary is required to make a Change of Control Offer or to make a
distribution with respect to such subordinated Debt or Preferred Stock in the
event of a Change of Control, the Company shall not consummate any such offer
or distribution with respect to such subordinated Debt or Preferred Stock
until such time as the Company shall have paid the Change of Control Purchase
Price in full to the Holders of Notes that have accepted the Company's Change
of Control Offer and shall otherwise have consummated the Change of Control
Offer made to Holders of the Notes and (ii) the Company shall not issue Debt
that is subordinated in right of payment to the Notes or Preferred Stock with
Change of Control provisions requiring the payment of such Debt or Preferred
Stock prior to the payment of the Notes in the event of a Change of Control
Triggering Event under this Indenture.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable
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securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.15 by virtue thereof.
SECTION 4.16 PAYMENT OF ADDITIONAL AMOUNTS
All payments made by the Company under or with respect to the
Notes, or by any Guarantor in respect of its Guarantee will be made free and
clear of and without withholding or deduction for or on account of any present
or future Taxes, unless the Company or such Guarantor is required to withhold or
deduct Taxes under the law of any Taxing Jurisdiction or by the interpretation
or administration thereof. If the Company or any Guarantor is required to
withhold or deduct any amount for or on account of Taxes from any payment made
under or with respect to the Notes or the Guarantees, the Company or such
Guarantor will pay such additional amounts ("ADDITIONAL AMOUNTS") as may be
necessary so that the net amount received by each Holder (including Additional
Amounts) after such withholding or deduction (including any withholding or
deduction in respect of Additional Amounts) will not be less than the amount the
Holder would have received if such Taxes had not been withheld or deducted;
PROVIDED that no Additional Amounts will be payable with respect to a payment
made to a Holder (an "EXCLUDED HOLDER") (a) with whom the Company or such
Guarantor does not deal at arm's length (within the meaning of the Income Tax
Act (Canada)) at the time of making such payment, (b) who is subject to the
Taxes in question by reason of its being connected with the jurisdiction
imposing such Taxes otherwise than by the mere acquisition or holding of the
Notes or the receipt of payments thereunder, or the enforcement of its rights
thereunder, or (c) who, where the Taxes in question are imposed by Canada or any
other province or territory thereunder, is subject to such Tax because the
Holder is or is deemed to be resident in Canada or uses or holds or is deemed or
considered to use or hold the Notes in carrying on business in Canada for
purposes of the Income Tax Act (Canada). The Company and any Guarantors will
also (i) make such withholding or deduction and (ii) remit the full amount
deducted or withheld to the relevant authority in accordance with applicable
law. The Company and any Guarantors will furnish to the Holders (other than
Excluded Holders) of Notes that are outstanding on the date of the withholding
or deduction, within 30 days after the date of the payment of any Taxes due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Company or such Guarantor.
The Company and any Guarantors will, upon written request of any
Holder (other than an Excluded Holder), reimburse each such Holder, for the
amount of (A) any such Taxes so required to be withheld or deducted which are
levied or imposed on and paid by such Holder as a result of payments made under
or with respect to the Notes or the Guarantees; and (B) any such Taxes so levied
or imposed with respect to any reimbursement under the foregoing clause (A) so
that the net amount received by such Holder after such reimbursement will not be
less than the net amount the Holder would have received if Taxes described in
subclauses (A) and (B) of this paragraph had not been imposed, but excluding any
such Taxes on such Holder's net income generally.
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At least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable, if the Company or any Guarantor
will be obligated to pay Additional Amounts with respect to such payment, the
Company or such Guarantor will deliver to the Trustee an Officers' Certificate
stating the fact that such Additional Amounts will be payable and specifying the
amounts so payable and will set forth such other information necessary to enable
the Trustee to pay such Additional Amounts to Holders on the payment date.
Whenever in this Indenture there is mentioned, in any context, principal,
premium, if any, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
The Company or any Guarantor will pay any present or future
stamp, court, documentary or other similar Taxes, charges or levies that arise
in any Taxing Jurisdiction from the execution, delivery or registration of, or
enforcement of rights under the Notes, this Indenture or any related document
("DOCUMENTARY TAXES").
SECTION 4.17 [INTENTIONALLY OMITTED].
SECTION 4.18 LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS IF THE NOTES
ARE RATED INVESTMENT GRADE.
Notwithstanding any other provision of this Indenture, in the
event that (a) the Notes are rated Investment Grade, (b) the 10% Notes are no
longer outstanding or the corresponding covenants described in the last
sentence of this paragraph with respect to the 10% Notes cease to exist by
defeasance, consent, waiver or otherwise and (c) no Event of Default or
Default shall have occurred and be continuing (the satisfaction of the
foregoing requirements being collectively referred to as the "FALL-AWAY
EVENT"), upon the delivery to the Trustee of an Officers' Certificate to the
effect that a Fall-away Event has occurred, the provisions of Sections 4.06,
4.07, 4.09, 4.10, 4.12, 4.15 and clause (a)(iii) of Section 5.01 of this
Indenture shall terminate and shall thereafter be deemed not to form a part
of this Indenture and the Company and its Restricted Subsidiaries shall
thereafter have no obligation or liability in respect of such sections,
notwithstanding that the Notes may later cease to be rated Investment Grade.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 LIMITATION ON CONSOLIDATION, AMALGAMATION,
MERGER AND SALE OF ASSETS.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, consolidate with, amalgamate with, merge with or
into, or sell,
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assign, transfer, lease, convey or otherwise dispose of all or substantially
all of the assets of the Company (determined on a consolidated basis for the
Company and its Restricted Subsidiaries) in one transaction or a series of
related transactions to, any Person unless:
(i) (A) the Company or such Restricted Subsidiary, as the case
may be, shall be the continuing Person, (B) in the case of a
Restricted Subsidiary, the Person is also a Restricted Subsidiary,
and one of the Restricted Subsidiaries is the continuing Person, or
(C) the Person (if other than the Company or such Restricted
Subsidiary) formed by such consolidation or amalgamation or into
which the Company or such Restricted Subsidiary, as the case may be,
is merged or assigned, transferred, leased, conveyed or otherwise
disposed of shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia or the laws of Canada or any province or territory thereof
and shall expressly assume, by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee,
all of the obligations of the Company or such Restricted Subsidiary,
as the case may be, under this Indenture, the Notes and any
Guarantee, as the case may be, and the obligations thereunder shall
remain in full force and effect;
(ii) immediately before and immediately after giving effect to
such transaction (including, without limitation, giving effect to
any Debt and Acquired Debt incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred and
be continuing; and
(iii) immediately after giving effect to such transaction on a
PRO FORMA basis the Company or such Person (A) shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction and (B)
could incur at least US$1.00 of additional Debt (other than
Permitted Debt) pursuant to Section 4.06 hereof; PROVIDED that the
Company or a Guarantor may merge into or amalgamate with or sell all
or substantially all of its assets to the Company or another
Guarantor, as the case may be, without complying with this clause
(iii).
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.01, prior to the consummation of such
transaction the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger or transfer and the supplemental
indenture in respect thereto comply with this provision and that all
conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
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For purposes of clauses (a) and (b) of this Section 5.01, the
transfer (by lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of the Company, the Capital
Stock of which constitutes all or substantially all of the properties and
assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 5.02 SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation, amalgamation or merger, or any
transfer of all or substantially all of the assets of the Company or any
Restricted Subsidiary in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or amalgamation or into which the
Company or a Restricted Subsidiary is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or such Restricted Subsidiary under this Indenture
and the Notes with the same effect as if such successor corporation had been
named as the Company or such Restricted Subsidiary herein and in the Notes,
and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
The following events are "EVENTS OF DEFAULT":
(1) default in the payment of any principal of, or premium, if any,
on the Notes when due (whether at maturity, upon redemption or otherwise);
(2) default in the payment of any interest on any Note when due,
which default continues for 30 days or more;
(3) default by the Company or any Restricted Subsidiary in the
observance or performance of any other covenant in the Notes or this
Indenture for 30 days after written notice specifying the default and
demanding that such default be remedied from the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Notes then
outstanding (except in the case of a default with respect to Section
4.10, 4.15 or 5.01 hereof, which shall constitute an Event of Default
with such notice requirement but without such passage of time
requirement);
(4) failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Debt of the Company
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or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of such Debt if, in either case, the aggregate
principal amount of such Debt together with the principal amount of any
other Debt not paid at final maturity or which has been accelerated,
aggregates $10,000,000 or more at any time and such Debt has not been
discharged in full, or such acceleration has not been rescinded or
annulled within 30 days after such final maturity or acceleration;
(5) any final judgment or judgments which can no longer be appealed
for the payment of money in excess of $10,000,000 (in excess of amounts
covered by insurance and as to which the insurer has acknowledged
coverage) shall be rendered against the Company or any Restricted
Subsidiary thereof, and shall not be discharged for any period of 60
consecutive days during which a stay of enforcement shall not be in
effect;
(6) the Company or any Restricted Subsidiary with assets in excess
of $1,000,000 pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or commences proceedings to make
a proposal or a compromise or arrangement,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against either of the Company or any
Restricted Subsidiary with assets in excess of $1,000,000
in an involuntary case,
(b) appoints a Custodian of either of the Company or any
Restricted Subsidiary with assets in excess of $1,000,000
or for all or substantially all of the property of either
of the Company or any such Restricted Subsidiary, or
(c) orders the liquidation of either of the Company or any
Restricted Subsidiary with assets in excess of $1,000,000,
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and the order or decree remains unstayed and in effect for 60 days; or
(8) any of the Guarantees of a Material Subsidiary ceases to be in
full force and effect or any of the Guarantees of a Material Subsidiary
is declared to be null and void and unenforceable or any of the
Guarantees of a Material Subsidiary is found to be invalid or any of the
Guarantors denies its liability under its Guarantee (other than by reason
of release of a Guarantor in accordance with Section 10.05 hereof).
Subject to Sections 7.01 and 7.02 hereof, the Trustee shall not
be charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Additional Interest unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Company or any other Person.
SECTION 6.02 ACCELERATION.
If an Event of Default (other than an Event of Default
described in clause (6) or (7) of Section 6.01 hereof) shall have occurred
and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding by written notice to
the Company (and to the Trustee if given by the Holders) may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus accrued and unpaid interest to the date of acceleration and
the same shall become immediately due and payable; PROVIDED that after such
acceleration but before a judgment or decree based on acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of outstanding Notes may, under certain circumstances, rescind and
annul such acceleration if (i) all Events of Default, other than non-payment
of principal, premium, if any, or interest that has become due solely because
of the acceleration, have been cured or waived as provided in this Indenture,
(ii) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (iii) the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances including the reasonable
fees and expenses of counsel and (iv) in the event of the cure or waiver of
an Event of Default of the type described in clause (6) or (7) of Section
6.01 hereof, the Trustee shall have received an Officers' Certificate and an
Opinion of Counsel that such Event of Default has been cured or waived. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default described in clause (6) or
(7) of Section 6.01 hereof, the principal, premium and interest amount with
respect to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders.
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SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law. Any costs associated with actions taken by the Trustee under this Section
6.03 shall be reimbursed to the Trustee by the Company.
SECTION 6.04 WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Subject to Sections 6.02, 6.08 and 8.02 hereof, the Holders of a
majority in principal amount of the Notes then outstanding by written notice to
the Trustee have the right to waive any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes. The Company shall
deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders has consented to such waiver. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; PROVIDED that
no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Notes
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Holder not taking part in such direction, and the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel, determines that the action so directed may not lawfully be taken or
if the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; PROVIDED that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 6.06 LIMITATION ON SUITS.
Subject to Section 6.08 hereof, a Holder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer and if requested provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer, and, if requested, provision
of, indemnity; and
(5) no direction which in the reasonable opinion of the Trustee is
inconsistent with such written request has been given to the Trustee
during such 60 day period by the Holders of a majority in aggregate
principal amount of the Notes then outstanding.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No past, present or future director, officer, employee,
partner, incorporator or shareholder of the Company or any corporate
successor thereto, as such, shall have any liability for any obligations of
the Company under the Notes, the Guarantees of any Guarantor or this
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.
Section 6.08 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal of, or premium, if any,
and interest on such Note (including Additional Interest) on or after the
respective due dates expressed on such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
such Holder.
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SECTION 6.09 COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or
interest specified in clause (1) or (2) of Section 6.01 hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any Guarantor for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate set forth
in the Notes, and such further amounts as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.10 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof) and the Holders allowed in
any judicial proceedings relative to the Company or any Guarantor, its creditors
or its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceedings.
SECTION 6.11 PRIORITIES.
If the Trustee collects any money pursuant to this Article Six,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
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SECOND: to Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and
interest (including Additional Interest, if any)
as to each, ratably, without preference or
priority of any kind, according to the amounts
due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee
collects any amount from any Guarantor, to such
Guarantor.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.11.
SECTION 6.12 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.12 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.08 hereof or a suit by Holders of more
than 10% in aggregate principal amount of the Notes then outstanding.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible Officer
of the Trustee has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise
or use under the same circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture.
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(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations, the accuracy of the signatures or other facts
stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to the terms of Sections 6.04 and 6.05 hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its rights, powers or duties if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a),
(b) and (c) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee; PROVIDED that the Trustee's
conduct does not constitute gross negligence or bad faith.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
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SECTION 7.02 RIGHTS OF TRUSTEE.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed
by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter
stated in the document.
(2) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request and any
resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution.
(3) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform in all material respects to the provisions of
Section 11.05 hereof. The Trustee shall be protected and shall not
be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(4) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed by it with due care.
(5) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(6) The Trustee may consult with counsel of its selection,
and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(7) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate.
(8) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document.
(9) The Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless the
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Trustee shall have received written notice thereof at the Corporate
Trust Office of the Trustee, and such notice references the Notes
and this Indenture. As used herein, the term "ACTUAL KNOWLEDGE"
means the actual fact or statement of knowing, without any duty to
make any investigation with regard thereto.
(10) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(11) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against any
loss, liability or expense which may be incurred therein or thereby.
(12) The Trustee shall not be responsible for any information
contained in any notice provision provided to the Trustee by the
Company for distribution to the Holders.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Company or any
Guarantor, or any Affiliates thereof, with the same rights it would have if
it were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes
or any Guarantee, it shall not be accountable for the Company's or any
Guarantor's use of the proceeds from the sale of Notes or any money paid to
the Company or any Guarantor pursuant to the terms of this Indenture and it
shall not be responsible for any statement in the Notes, any Guarantee or
this Indenture other than the Trustee's certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if the Trustee has
actual knowledge of such default, the Trustee shall mail to each Holder
notice of the Default within 90 days after it occurs. Except in the case of a
Default in payment of the principal of, or premium, if any, or interest on
any Note or a default in the observance or performance of any of the
obligations of the Company under Article Five, the Trustee may withhold the
notice if and so long as a
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committee of its Responsible Officers in good faith determines that
withholding the notice is in the best interest of the Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 90 days after
December 31 of any year, commencing December 31, 2003, the Trustee shall mail
to each Holder a brief report dated as of such December 31 that complies with
TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses of
such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with
the Trustee for that purpose.
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange on which the Notes
are listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company and any Guarantors shall pay to the Trustee and
each Agent from time to time reasonable compensation for its services
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company and
any Guarantors shall reimburse the Trustee and each Agent upon request for
all reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and any Guarantors shall indemnify each of the
Trustee and any predecessor Trustee and each Agent for, and hold each of them
harmless against, any and all loss, damage, claim, liability or expense,
including without limitation taxes (other than taxes based on the income of
the Trustee or such Agent) and reasonable attorneys' fees and expenses
incurred by each of them in connection with the acceptance or performance of
its duties under this Indenture including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder (including,
without limitation, settlement costs). The Company and any Guarantor need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. The Trustee or Agent, as the case may be, shall notify
the
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Company and any Guarantors in writing promptly of any claim asserted against
the Trustee or such Agent for which it may seek indemnity. However, the
failure by the Trustee or such Agent to so notify the Company and any
Guarantors shall not relieve the Company and any Guarantors of their
obligations hereunder.
Notwithstanding the foregoing, the Company and any Guarantors
need not reimburse the Trustee or any Agent for any expense or indemnify it
against any loss or liability incurred by the Trustee or such Agent, as the
case may be, resulting from its own negligence, willful misconduct or bad
faith. To secure the payment obligations of the Company and any Guarantors in
this Section 7.07, the Trustee shall have a lien prior to the Notes on all
money or property held or collected by the Trustee except such money or
property held in trust to pay principal of and interest on particular Notes.
The obligations of the Company and any Guarantors under this Section 7.07 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the
Company and any Guarantors and shall survive the resignation or removal of
the Trustee and the satisfaction, discharge or other termination of this
Indenture, including any termination or rejection hereof under any Bankruptcy
Law.
When the Trustee incurs expenses (including reasonable fees
and expenses of its Agents and counsel) or renders services after an Event of
Default specified in clause (6) or (7) of Section 6.01 hereof occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company and any
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld.
The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of performing its
duties hereunder.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify the Holders of
such event and shall promptly appoint a successor Trustee. Within one year after
such successor Trustee takes office, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may appoint a successor Trustee
to replace such successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under
Section 7.07 hereof, transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company's and any Guarantor's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation
without any further act shall be the successor Trustee; PROVIDED such entity
shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and
surplus of at least US$100,000,000 as set forth in the most recent applicable
published annual report of condition. The Trustee shall comply with TIA
Section 310(b), including the provision in TIA Section 310(b)(1).
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SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee wHO has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated
therein.
SECTION 7.12 PAYING AGENTS.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 7.12:
(1) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the
Notes (whether such sums have been paid to it by the Company, any
Guarantor or by any other obligor on the Notes) in trust for the
benefit of Holders of the Notes or the Trustee;
(2) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to
the Trustee all sums so held in trust by it together with a full
accounting thereof; and
(3) that it will give the Trustee written notice within three
Business Days of any failure of the Company, any Guarantor or by
any obligor on the Notes in the payment of any installment of the
principal of, premium, if any, or interest on, the Notes when the
same shall be due and payable.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01 WITHOUT CONSENT OF HOLDERS.
The Company and any Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee, when an Officers' Certificate is
provided stating that such amendment or supplement complies with the
provisions of this Section 8.01, may amend, waive or supplement this
Indenture or the Notes without notice to or consent of any Holder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the Commission under
the TIA;
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(4) to cure any ambiguity, defect or inconsistency;
(5) to add a Guarantor;
(6) to provide for the issuance of the Exchange Securities or
the Private Exchange Securities in accordance with Section 2.01
hereof in a manner that does not adversely affect the rights of any
Holder;
(7) to provide for the assumption of the Company's or a
Guarantor's obligations to Holders in the event of a merger or
consolidation in accordance with the terms of this Indenture;
(8) in reliance on an Opinion of Counsel, to make any other
change that does not adversely affect the rights of any Holders
hereunder in any material respect; or
(9) to comply with the requirements of the Commission to
effect or maintain the qualification of this Indenture under the
TIA.
The Trustee is hereby authorized to join with the Company and
any Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
SECTION 8.02 WITH CONSENT OF HOLDERS.
The Company (when authorized by a Board Resolution) and any
Guarantors (when authorized by a Board Resolution) may, subject to Section
8.06 hereof, direct the Trustee to modify or supplement this Indenture, the
Guarantees and/or the Notes with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Notes. The
Holders of not less than a majority in aggregate principal amount of the
outstanding Notes may waive compliance in a particular instance by the
Company or any Guarantor with any provision of this Indenture or the Notes.
Subject to Section 8.04 hereof, without the consent of each Holder affected,
however, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04 hereof, may not:
(1) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver to this Indenture;
(2) reduce the rate of, change the method of calculation of
or change the time for payment of interest, including defaulted
interest, on any Note;
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(3) reduce the principal of or premium on or change the
stated maturity of any Note or change the date on which any Notes
may be subject to redemption or repurchase or reduce the redemption
or repurchase price therefor;
(4) make any Note payable in money other than that stated in
the Note or change the place of payment from
New York,
New York;
(5) waive a default on the payment of the principal of,
interest on, or redemption payment with respect to any Note (except
a rescission of acceleration of the Notes in accordance with the
terms of this Indenture or a waiver of the payment default that
resulted from such acceleration in accordance with the terms of
this Indenture);
(6) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal
of and interest on such Note on or after the due date thereof or to
bring suit to enforce such payment, or permitting Holders of a
majority in principal amount of Notes to waive Defaults or Events
of Default;
(7) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control Triggering Event
or make and consummate an Excess Proceeds Offer with respect to any
Asset Sale that has been consummated or modify any of the
provisions or definitions with respect thereto;
(8) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders; or
(9) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance with
the terms of this Indenture.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver.
Upon the written request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the receipt by the Trustee of evidence reasonably
satisfactory to the Trustee of the consent of the Holders as aforesaid and
upon receipt by the Trustee of the documents described in Section 8.06
hereof, the Trustee shall join with the Company and any Guarantors in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture,
in which case the Trustee may, but shall not be obligated to, enter into such
supplemental indenture.
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It shall not be necessary for the consent of the Holders under
this Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 8.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 8.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Note or
portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee
receives the written notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date unless the consent of
the requisite number of Holders has been obtained.
An amendment, supplement, waiver or other action becomes
effective in accordance with its terms and thereafter shall bind every
Holder, unless it makes a change described in any of clauses (1) through (9)
of Section 8.02 hereof. In that case the amendment, supplement, waiver or
other action shall bind each Holder who has consented to it and every
subsequent Holder or portion of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 8.05 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Company) shall request the Holder of the Note (in accordance with the
specific written direction of the Company) to deliver it to the Trustee. In
such case, the Trustee shall at the expense of the Company place an
appropriate
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notation on the Note about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue, any Guarantors shall endorse and the
Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 8.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or
waiver does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing or refusing to sign such amendment, supplement or waiver the
Trustee shall be entitled to receive and, subject to Section 7.01 hereof,
shall be fully protected in relying upon an Officers' Certificate and an
Opinion of Counsel stating, in addition to the matters required by Section
11.04 hereof, that such amendment, supplement or waiver is authorized or
permitted by this Indenture and is a legal, valid and binding obligation of
the Company and any Guarantors, enforceable against the Company and any
Guarantors in accordance with its terms (subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01 DISCHARGE OF INDENTURE.
The Company may terminate its obligations under the Notes and
this Indenture as well as the obligations of any Guarantors under their
respective Guarantees, except those obligations referred to in the penultimate
paragraph of this Section 9.01 if:
(i) either (a) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust) have been delivered to the Trustee for cancellation or
(b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire Debt
on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on
the Notes to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case
may be;
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(ii) the Company has paid all other sums payable under this
Indenture by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the first paragraph of this Section 9.01, the
Company's obligations in Sections 2.06, 2.07, 2.08, 2.09, 4.16, 7.07, 9.05
and 9.06 hereof shall survive until the Notes are no longer outstanding
pursuant to the last paragraph of Section 2.09 hereof. After the Notes are no
longer outstanding, the Company's obligations in Section 7.07, 9.05 and 9.06
hereof shall survive.
After such delivery or irrevocable deposit, the Trustee upon
written request of the Company shall acknowledge in writing the discharge of
the Company's and each Guarantor's obligations under the Notes, the
Guarantees and this Indenture, as the case may be, except for those surviving
obligations specified above.
SECTION 9.02 LEGAL DEFEASANCE.
The Company may at its option, by Board Resolution of the
Company, be discharged from its obligations with respect to the Notes and any
Guarantors discharged from their obligations under their respective
Guarantees on the date the conditions set forth in Section 9.04 below are
satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, "Legal
Defeasance" means that the Company and any Guarantors shall be deemed to have
paid and discharged the entire Debt represented by the Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section
9.08 hereof and the other Sections of this Indenture referred to in clauses
(A) and (B) below, and to have satisfied all of its other obligations under
such Notes, such Guarantees and this Indenture, as the case may be, insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall, subject to Section 9.06 hereof, execute instruments in form and
substance reasonably satisfactory to the Trustee and the Company
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section
9.04 hereof, and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such Notes when such
payments are due, (B) the Company's obligations with respect to such Notes
under Sections 2.04, 2.05, 2.07 and 2.11 hereof, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including claims of,
or payments to, the Trustee pursuant to Section 7.07 hereof) and (D) this
Article Nine. Subject to compliance with this Article Nine, the Company may
exercise its option under this Section
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9.02 with respect to the Notes notwithstanding the prior exercise of its
option under Section 9.03 below with respect to the Notes.
SECTION 9.03 COVENANT DEFEASANCE.
At the option of the Company, pursuant to a Board Resolution
of the Company, the Company and any Guarantors shall be released from their
respective obligations under Sections 4.02 (except for obligations mandated
by the TIA), 4.06 through 4.13, inclusive, and 4.15 and clause (a)(iii) of
Section 5.01 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 9.04 hereof are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose,
"Covenant Defeasance" means that the Company and any Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof,
whether directly or indirectly by reason of any reference elsewhere herein to
any such specified Section or portion thereof or by reason of any reference
in any such specified Section or portion thereof to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under clause (3) of Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and
the Notes shall be unaffected thereby.
SECTION 9.04 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee as funds in trust for the purpose of
making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Notes, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (C)
a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge the principal of, premium, if
any, and accrued and unpaid interest on the Notes, at the maturity
date of such principal, premium, if any, or interest, or on dates
for payment and redemption of such principal, premium, if any, and
interest selected in accordance with the terms of this Indenture
and the Notes; PROVIDED that the Trustee
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shall have been irrevocably instructed in writing to apply such
money or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest with
respect to the Notes;
(2) in the case of an election under Section 9.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service or Canada Customs and
Revenue Agency a ruling or (B) the applicable U.S. federal or
Canadian income tax law provides or there has been a change in any
applicable U.S. federal or Canadian income tax law, in either case,
to the effect that, and such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income,
gain or loss for U.S. federal and Canadian income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. federal
and Canadian income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the outstanding Notes will not
recognize income, gain or loss for both U.S. federal and Canadian
income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. federal and Canadian income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Event of Default or Default (or an event which with
notice or lapse of time or both would become a Default or Event of
Default) with respect to the Notes shall have occurred and be
continuing on the date of such deposit (other than a Default or
Event of Default resulting from the incurrence of Debt the proceeds
of which will be used to defease the Notes pursuant to this Article
Nine concurrently with such incurrence) or insofar as clause (6) or
(7) of Section 6.01 hereof are concerned, at any time in the period
ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under
this Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) of
this Section 9.04 was not made by the Company with the intent of
preferring the Holders of the Notes over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
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(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the Legal
Defeasance under Section 9.02 hereof or the Covenant Defeasance
under Section 9.03 hereof, as the case may be, have been complied
with;
(8) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the passage of 123
days following the deposit (except, with respect to any trust funds
for the account of any Holder who may be deemed to be an "insider"
for purposes of the United States Bankruptcy Code, after one year
following the deposit), the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
Section 15 of the
New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute; and
(9) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee
all amounts then due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof
in respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent, to the Holders
of such Notes, of all sums due and to become due thereon in respect of
principal, premium, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company and any Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.04 hereof or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Notes.
Anything in this Article Nine to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon a
Company Request any money or U.S. Government Obligations held by it as
provided in Section 9.04 hereof which, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
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SECTION 9.06 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Article Nine by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees, as the case may be, shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
Nine until such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance this Article Nine;
PROVIDED that if the Company or any Guarantors have made any payment of
principal of, premium, if any, or accrued interest on any Notes because of
the reinstatement of their obligations, the Company or such Guarantor, as the
case may be, shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money or U.S. Government Obligations, as the
case may be, held by the Trustee or Paying Agent.
SECTION 9.07 MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon written demand of the Company, be paid to the
Trustee, or if sufficient moneys have been deposited pursuant to Section 9.04
hereof, to the Company upon a Company Request (or, if such moneys had been
deposited by any Guarantors, to such Guarantors), and thereupon such Paying
Agent shall be released from all further liability with respect to such
moneys.
SECTION 9.08 MONEYS HELD BY TRUSTEE.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or any Guarantor in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not
applied but remain unclaimed by the Holder of such Note for two years after
the date upon which the principal of, or premium, if any, or interest on such
Note shall have respectively become due and payable, shall be repaid to the
Company (or, if appropriate, any Guarantor) upon a Company Request, or if
such moneys are then held by the Company or any Guarantor in trust, such
moneys shall be released from such trust; and the Holder of such Note
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company and any Guarantors for the payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; PROVIDED that the Trustee or any
such Paying Agent, before being required to make any such repayment, may, at
the expense of the Company and any Guarantors, either mail to each Holder
affected, at the address shown in the register of the Notes maintained by the
Registrar pursuant to Section 2.04 hereof, or cause to be published once a
week for two successive weeks, in a newspaper published in the English
language, customarily published each
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Business Day and of general circulation in the City of
New York,
New York, a
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing
or publication, any unclaimed balance of such moneys then remaining will be
repaid to the Company. After payment to the Company or any Guarantor or the
release of any money held in trust by the Company or any Guarantor, as the
case may be, Holders entitled to the money must look only to the Company and
any Guarantors for payment as general creditors unless applicable abandoned
property law designates another Person.
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01 GUARANTEE.
Subject to the provisions of this Article Ten each Guarantor
hereby 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 this 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 and Additional Interest, if any, on and any
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 or Additional Interest, if any, 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 hereof) and all other
obligations under this 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 this 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 extent as the
obligations of the Company.
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Each Guarantor, by execution of the Guarantee, agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of this 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. Each Guarantor, by execution
of the Guarantee, waives the benefit of diligence, presentment, demand for
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 covenant that
such Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and such 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, the
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between it, on the
one hand, and the Holders and the Trustee, on the other hand, (a) subject to
this Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of the
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 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of such
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, 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, or 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.
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SECTION 10.02 EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 10.01
hereof, each Guarantor hereby agrees that a notation of such Guarantee,
substantially in the form included in EXHIBIT F hereto, shall be endorsed on
each Note authenticated and delivered by the Trustee after this Article Ten
with respect to such Guarantor becomes effective in accordance with Section
4.13 hereof 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.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 10.01 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 a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticate 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 hereunder, shall constitute due delivery of any
Guarantee set forth in this Indenture on behalf of the Guarantor.
SECTION 10.03 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 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 10.04 ADDITIONAL GUARANTORS.
Any Person may become a Guarantor by executing and delivering
to the Trustee a supplemental indenture in accordance with Section 4.13
hereof.
SECTION 10.05 RELEASE OF GUARANTOR.
A Guarantor shall be released from all of its obligations
under its Guarantee if:
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(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 this Indenture (including Sections
4.10 and 5.01 hereof);
(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 this 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 herein provided for relating to such transactions have
been complied with and that such release is authorized and permitted
hereunder.
If all of the conditions to release contained in this Section
10.05 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 this Article Ten.
SECTION 10.06 WAIVER OF SUBROGATION.
Each Guarantor, by execution of its Guarantee, waives to the
extent permitted by law any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under such
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder against the Company, whether
or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment on account of such claim or
other rights. If any amount shall be paid to any Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall forthwith be paid to the Trustee for the benefit of such Holders to
be credited and applied upon the Notes, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor, by execution of
its Guarantee, will acknowledge that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 10.06 is knowingly made in
contemplation of such benefits.
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ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02 NOTICES.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
NORSKE XXXX CANADA LIMITED
16th Floor
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
XXXXXX
Attention: Corporate Secretary
Fax Number: (000) 000-0000
with, in the case of any notice furnished pursuant to
Article Six hereof, a copy to:
XXXXXX XXXXXXX
0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
XXXXXX
Attention: Xxxxxx X. Xxxxxxxx
Fax Number: (000) 000-0000
and
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Shearman & Sterling
0000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Fax Number: (000) 000-0000
If to the Trustee:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Corporate Trust Services 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: CORPORATE TRUST SERVICES
Fax Number: (000) 000-0000
Such notices or communications shall be effective when received
and shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, any Guarantor or the Trustee by written notice to
the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication to a Holder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives
it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of
such notice.
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SECTION 11.03 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company
or such Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05) stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance by or
on behalf of the Company or any Guarantor with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to
enable it or him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
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SECTION 11.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or
meetings of Holders. The Registrar and Paying Agent may make reasonable rules
for their functions.
SECTION 11.07 BUSINESS DAYS; LEGAL HOLIDAYS.
A "BUSINESS DAY" is a day that is not a Legal Holiday. A
"LEGAL HOLIDAY" is a Saturday, a Sunday, a United States or Canadian
federally-recognized holiday or a day on which banking institutions are not
required to be open in the State of New York or the Province of British
Columbia. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.09 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES.
By the execution and delivery of this 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 or this Indenture that may be
instituted in any United States Federal or State court in the State of New
York, Borough of Manhattan, or brought under United States 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 hereof), 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 System, in full force and effect so long as
this 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 agent for service of process under
this Section 11.09 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State
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of New York, (ii) is 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 11.09. 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 any Guarantors, if
any, appointed and acting in accordance with this Section 11.09.
To the extent that the Company or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Company and such Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret
this Indenture.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
No recourse for the payment of the principal of or premium, if
any, or interest, including Additional Interest, on any of the Notes, or for
any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or any
Guarantor in this Indenture or in any supplemental indenture, or in any of
the Notes, or because of the creation of any Debt represented thereby, shall
be had against any stockholder, officer, director or employee, as such, past,
present or future, of the Company or any Guarantor or of any successor
corporation or against the property or assets of any such stockholder,
officer, employee or director, either directly or through the Company or any
Guarantor, or any successor corporation thereof, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture
and the Notes are solely obligations of the Company and the Guarantors, and
that no such personal liability whatever shall attach to, or is or shall be
incurred by, any shareholder, officer, employee or director of the Company or
any Guarantor, or any successor corporation thereof, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or the Notes
or implied therefrom, and that any and all such personal liability of, and
any and all claims against every stockholder, officer, employee and
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director, are hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the issuance of the
Notes. It is understood that this limitation on recourse is made expressly
for the benefit of any such shareholder, employee, officer or director and
may be enforced by any of them.
SECTION 11.12 SUCCESSORS.
All agreements of the Company and any Guarantors in this
Indenture and the Notes shall bind their respective successors. All
agreements of the Trustee, any additional trustee and any Paying Agents in
this Indenture shall bind its successor.
SECTION 11.13 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 11.15 SEPARABILITY.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.16 JUDGMENT CURRENCY.
The Company and each of the Guarantors, jointly and severally,
each agree to indemnify each Holder against any loss incurred by such party
as a result of any judgment or order being given or made for any amount due
under this Indenture and such judgment or order being expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in The
City of New York at which such party on the date of payment of such judgment
or order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such party. The
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foregoing indemnity shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "spot rate of exchange"
shall include any premiums and costs of exchange payable in connection with
the purchase of, or conversion into, United States dollars.
[Remainder of page intentionally left blank]
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
THE ISSUER:
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President Finance
and Chief Financial
Officer
THE GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: President
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA PULP
OPERATIONS LIMITED
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President Finance
and Chief Financial
Officer
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NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKE XXXX CANADA SERVICES
(HUNGARY) LIMITED LIABILITY COMPANY
By: /s/ Xxx Xxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title:
NORSKE XXXX CANADA (USA) Inc.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
NSCL HOLDINGS INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: President
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PACIFICA PAPERS SALES INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
PACIFICA POPLARS LTD.
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: President
PACIFICA POPLARS INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
PACIFICA PAPERS US INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Treasurer
NORSKECANADA
by its managing general partner,
Norske Xxxx Canada Limited
By: /s/ Xxxxx Xxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Finance and Chief
Financial Officer
S-4
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as TRUSTEE
By: /s/ Xxxxxx X. X'Xxxxxxx
-----------------------
Name:
Title:
EXHIBIT A
CUSIP
NORSKE XXXX CANADA LIMITED
No. US$
8-5/8% SERIES C SENIOR NOTE DUE 2011
NORSKE XXXX CANADA LIMITED, a corporation incorporated under
the laws of Canada (the "COMPANY," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
promises to pay to __________ or registered assigns the principal sum of
__________ U.S. DOLLARS (US$ _________) on June 15, 2011 at the office or
agency of the Company referred to below.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Elk Falls Pulp and Paper Limited, Norske Xxxx Canada (Japan)
Ltd., Norske Xxxx Canada Finance Limited, Norske Xxxx Canada Pulp Operations
Limited, Norske Xxxx Canada Pulp Sales Inc., Norske Xxxx Canada Sales Inc.,
Norske Xxxx Canada (USA) Inc., Norske Xxxx Canada Services (Hungary) Limited
Liability Company, NSCL Holdings Inc., Pacifica Papers Sales Ltd., Pacifica
Papers Sales Inc., Pacifica Poplars Ltd., Pacifica Poplars Inc., Pacifica
Papers US Inc. and NorskeCanada (collectively the "GUARANTORS," which term
includes any successor under the Indenture hereinafter referred to and any
Restricted Subsidiary that provides a Guarantee pursuant to the Indenture)
have jointly and severally, fully and unconditionally, guaranteed the payment
of principal of, premium, if any, and interest on the Notes.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NORSKE XXXX CANADA LIMITED
By: ____________________________
Name:
Title:
Dated:
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Certificate of Authentication
This is one of the 8-5/8% Series C Senior Notes due 2011
referred to in the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By: ____________________________
Name:
Title:
Dated:
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[FORM OF REVERSE OF NOTE]
NORSKE XXXX CANADA LIMITED
8-5/8% SERIES C SENIOR NOTE DUE 2011
1. INTEREST. NORSKE XXXX CANADA LIMITED, a corporation
incorporated under the laws of Canada (the "COMPANY"), promises to pay, until
the principal hereof is paid or made available for payment, interest on the
principal amount set forth on the face hereof at a rate of 8-5/8% per annum.
Interest hereon will accrue from the most recent date from which interest has
been paid, but if no interest has been paid, from December 15, 2002. Interest
shall be payable in arrears on each June 15 and December 15, commencing June
15, 2003. Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months. The Company shall pay interest on overdue principal
and on overdue interest (to the full extent permitted by law) at a rate of
8-5/8% per annum.
2. METHOD OF PAYMENT. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on the June 1 or December 1 next preceding the interest
payment date (whether or not a Business Day). Holders must surrender Notes to
a Paying Agent to collect principal payments. The Company will pay principal
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Interest may
be paid by check mailed to the Holder entitled thereto at the address
indicated on the register for the Notes maintained by the Registrar.
3. PAYING AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank
Minnesota, National Association (the "TRUSTEE") will act as a Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice. The Company or any of its Affiliates may act as Paying Agent or
Registrar.
4. INDENTURE. This Note is one of a duly authorized issue of
Notes of the Company, designated as its 8-5/8% Series C Senior Notes due 2011
(herein called the "Notes"). The Company issued the Notes under an Indenture
dated as of May 15, 2003 (the "INDENTURE") among the Company, the Guarantors
and the Trustee. This is one of an issue of Notes of the Company issued, or
to be issued, under the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb), as in
effect on the date of the Indenture (the "ACT"). The Notes are subject to all
such terms, and Holders are referred to the Indenture and the Act for a
statement of them. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. Capitalized and certain other terms used
herein and not otherwise defined have the meanings set forth in the
Indenture. The Notes are general, unsecured obligations of the Company.
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5. ADDITIONAL AMOUNTS. The Company will pay to the Holders of
Notes such Additional Amounts as may become payable under Section 4.16 of the
Indenture.
6. OPTIONAL REDEMPTION. The Company, at its option, may redeem
the Notes, in whole at any time, or in part from time to time on or after June
15, 2006 upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount thereof) set forth below,
together, in each case, with accrued and unpaid interest to the Redemption Date,
if redeemed during the twelve month period beginning on June 15 of each year
listed below:
YEAR REDEMPTION PRICE
---- ----------------
2006....................................... 104.313%
2007....................................... 102.875%
2008....................................... 101.438%
2009 and thereafter........................ 100.000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 35% of the original principal amount of Notes at any time and
from time to time prior to June 15, 2004 at a redemption price equal to
108.625% of the aggregate principal amount so redeemed, plus accrued and
unpaid interest to the Redemption Date, out of the net cash proceeds of one
or more Public Equity Offerings; PROVIDED that at least 65% of the principal
amount of Exchange Securities and any Notes that have not been exchanged for
Exchange Securities remains outstanding immediately after the occurrence of
any such redemption and that any such redemption occurs within 90 days
following the closing of any such Public Equity Offering.
7. TAX REDEMPTION. The Notes are redeemable, in whole but not
in part, at the option of the Company at any time, upon not less than 30 nor
more than 60 days' prior written notice, mailed by first class mail to each
Holder at its last address appearing in the register of Notes maintained by
the Registrar at 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the Redemption Date, if the Company or any Guarantor is
or would become obligated to pay, on the next date on which any amount would
be payable with respect to the Notes or the Guarantees, any Additional
Amounts as a result of a change in, or amendment to, the laws (or any
regulations promulgated thereunder) of any Taxing Jurisdiction, or any
changes in, or amendment to, any official position regarding the application
or interpretation of such laws or regulations, which change or amendment is
announced on or after the Issue Date; PROVIDED that the Company or such
Guarantor determines, in its business judgment, that the obligation to pay
such Additional Amounts cannot be avoided by the use of reasonable measures
available to the Company or such Guarantor (not including substitution of the
obligor under the Notes); and PROVIDED, FURTHER, that (i) no such notice of
redemption may be given earlier than 90 days prior to the earliest date on
which the Company or such Guarantor would but for such redemption be
obligated to pay such Additional Amounts or later than 270 days after the
Company or such Guarantor
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first becomes liable to pay any Additional Amounts as a result of any changes
in or amendments to laws, regulations or official positions described above
and (ii) at the time such notice is given, the Company's or such Guarantor's
obligation to pay such Additional Amounts remains in effect.
Prior to the publication of any notice of redemption pursuant
to this provision, the Company will deliver to the Trustee (a) an Officer's
Certificate stating that the Company is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions precedent
to the right of the Company so to redeem have occurred and (b) an opinion of
legal counsel qualified under the laws of the relevant jurisdiction to the
effect that the Company or such Guarantor has or will become obligated to pay
such Additional Amounts as a result of such amendment or change as described
above.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption
payment, interest ceases to accrue on Notes or portions thereof called for
redemption, unless the Company shall fail to redeem any Notes.
9. OFFERS TO PURCHASE. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the
Indenture.
10. REGISTRATION RIGHTS. Pursuant to a Registration Rights
Agreement among the Company, the Guarantors and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, RBC Dominion Securities Corporation, Scotia Capital
(USA) Inc., CIBC World Markets Corp., BMO Xxxxxxx Xxxxx Corp., HSBC
Securities (USA) Inc. and TD Securities (USA) Inc., as Initial Purchasers of
the Notes, the Company and the Guarantors will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for notes of a separate series issued under the
Indenture (or a trust indenture substantially identical to the Indenture in
accordance with the terms of the Registration Rights Agreement) which have
been registered under the Securities Act, in like principal amount and having
substantially identical terms as the Notes. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer
is not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of US$1,000 and integral
multiples of US$1,000. A Holder may transfer or exchange Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay to it
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portion
of a Note
A-6
selected for redemption, or register the transfer of or exchange any Notes
for a period of 15 days before a mailing of notice of redemption.
12. PERSONS DEEMED OWNERS. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
13. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will
pay the money back to the Company at its written request. After that, Holders
entitled to the money must look to the Company for payment as general
creditors unless an "abandoned property" law designates another Person.
14. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company, any
Guarantors and the Trustee may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Act and making any change that does not materially and
adversely affect the rights of any Holder. Other amendments and modifications
of the Indenture or the Notes may be made by the Company, any Guarantors and
the Trustee with the consent of the Holders of not less than a majority of
the aggregate principal amount of the outstanding Notes, subject to certain
exceptions requiring the consent of the Holders of the particular Notes to be
affected.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Debt, make payments in respect of their
Capital Stock or certain Debt, make certain Investments, create or incur
liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions, issue Capital Stock of any Restricted Subsidiaries of the
Company, and on the ability of the Company to merge or consolidate with any
other Person or transfer all or substantially all of the Company's or any
Guarantor's assets. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.04 of the Indenture, the
Company must annually report to the Trustee on compliance with such
limitations. Upon the occurrence of a Fall-away Event, certain restrictive
covenants in the Indenture will terminate as provided in Section 4.18 of the
Indenture.
16. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the
Indenture and the transaction complies with the terms of Article Five of the
Indenture, the predecessor corporation will, except as provided in Article
Five, be released from those obligations.
17. DEFAULTS AND REMEDIES. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event
of Default (other than an Event of Default specified in clause (6) or (7) of
Section 6.01 of the Indenture with respect to
A-7
the Company) occurs and is continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may declare to be immediately
due and payable the entire principal amount of all the Notes then outstanding
plus accrued and unpaid interest to the date of acceleration and the same
shall become immediately due and payable. If an Event of Default specified in
clause (6) or (7) of Section 6.01 of the Indenture occurs with respect to the
Company, the principal amount of and interest on, all Notes shall IPSO FACTO
become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal, premium, if
any, or interest or a default in the observance or performance of any of the
obligations of the Company under Article Five of the Indenture) if it
determines that withholding notice is in their best interests.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, partner, incorporator or shareholder, of the
Company or any Guarantor or any corporate successor thereto shall have any
liability for any obligations of the Company under the Notes, the Guarantees,
the Indenture or for a claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
20. DISCHARGE. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of
all the Notes or upon the irrevocable deposit with the Trustee of money in
United States dollars or U.S. Government Obligations sufficient to pay when
due principal of and interest on the Notes to maturity or redemption, as the
case may be.
21. GUARANTEES. The Note is entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations
of rights, duties and obligations thereunder of the Guarantors, the Trustee
and the Holders.
22. AUTHENTICATION. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Note.
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23. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Company and the Guarantors agree 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 the Indenture or the Notes.
24. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
25. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
NORSKE XXXX CANADA LIMITED
16th Floor
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
XXXXXX
Attention: Corporate Secretary
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
______________________________________________________________________________
______________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: __________ Your Signature:__________________________
(Sign exactly as your name
appears on the other side
of this Note)
___________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, check the appropriate box:
|_| Section 4.10 |_| Section 4.15
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
US$ ____________________
(multiple of US$1,000)
Date:___________________
Your Signature:__________________________
(Sign exactly as your name appears on the
face of this Note)
________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee)
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EXHIBIT B
[FORM OF PRIVATE PLACEMENT LEGEND]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO NORSKE XXXX CANADA LIMITED OR ANY OF ITS SUBSIDIARIES, (B) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND, IF REQUESTED BY NORSKE XXXX CANADA LIMITED OR THE TRUSTEE, AN
OPINION OF COUNSEL ACCEPTABLE TO THEM THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (PROVIDED THAT SUCH NON-U.S.
PERSONS AGREE NOT TO RESELL OR OTHERWISE TRANSFER THE NOTE IN CANADA OR TO OR
FOR THE BENEFIT OF A CANADIAN RESIDENT, EXCEPT IN ACCORDANCE WITH APPLICABLE
CANADIAN SECURITIES LAWS), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES
ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTE, THE HOLDER MUST TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR NON-U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND NORSKE XXXX CANADA LIMITED SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
B-1
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
THIS NOTE HAS NOT BEEN THE SUBJECT OF ANY PROSPECTUS FILED UNDER THE
SECURITIES LAWS OF ANY CANADIAN PROVINCE OR TERRITORY. THE HOLDER OF THIS
NOTE BY ITS ACCEPTANCE HEREOF REPRESENTS, IF IT IS A RESIDENT OF CANADA, THAT
IT IS PURCHASING THE NOTE IN A TRANSACTION WHICH IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS REQUIREMENTS OF APPLICABLE CANADIAN SECURITIES
LAWS. THE SALE OF THE NOTE TO IT QUALIFIES (BY REASON OF THE AMOUNT OF THE
CONSIDERATION BEING PAID BY THE PURCHASER OF THE SECURITIES OR BY REASON OF
THE STATUS OF THE PURCHASER, AS THE CASE MAY BE) FOR AN EXEMPTION FROM THE
PROSPECTUS FILING AND DELIVERY OBLIGATIONS UNDER APPLICABLE CANADIAN
PROVINCIAL OR TERRITORIAL SECURITIES LAWS (PROVIDED THAT APPLICABLE
REGISTRATION REQUIREMENTS AND FILING OBLIGATIONS ARE SATISFIED AND ANY
APPLICABLE FEES ARE PAID), AND IT HAS PROVIDED SUCH INFORMATION AND MADE SUCH
REPRESENTATIONS TO THE SELLER OF THE SECURITIES AS MAY BE REASONABLY
NECESSARY FOR THE SELLER TO RELY ON SUCH EXEMPTIONS AND AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE DATE ON WHICH RESALE RESTRICTIONS TERMINATE UNDER
APPLICABLE SECURITIES LAWS.
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[FORM OF ASSIGNMENT FOR
RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
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(Print or type name, address and zip code of assignee)
and irrevocably appoint:
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Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date the Shelf Registration Statement is declared
effective or (ii) the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) This Note is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule
144A thereunder.
or
[ ] (b) This Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If neither of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: _____________________________ Your Signature: _______________________
(Sign exactly as your name
appears on the face of this Note)
___________________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee)
B-3
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ______________________________ _______________________________________
NOTICE: To be executed by
an executive officer
B-4
EXHIBIT C
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE TO A NOMINEE OF THE DEPOSITORY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
___________, ____
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
NORSKE XXXX CANADA LIMITED
c/o Wells Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
RE: NORSKE XXXX CANADA LIMITED (THE "COMPANY")
8-5/8% SERIES C SENIOR NOTES DUE 2011 (THE "NOTES")
Dear Sirs:
In connection with our proposed purchase of $ ______ aggregate
principal amount of the Notes, we confirm that:
1. We are not a resident of Canada or a corporation or other
entity governed by the laws of Canada or any province or territory
thereof.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of May 15, 2003 relating to the Notes and we agree
to be bound by, and not to resell, pledge or otherwise transfer the
Notes except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and any
applicable Canadian securities laws of any province or territory of
Canada.
3. We understand that the Notes have not been registered under
the Securities Act or any other applicable securities laws, have not
been and will not be qualified for sale under the securities laws of
Canada or any province or territory thereof or any other non-U.S.
jurisdiction and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Notes within
the time period referred to in Rule 144(k) of the Securities Act, we
will do so only (i) to the Company or any subsidiary thereof, (ii) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A), (iii) to an
institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter substantially in the form of this
letter and, at your request, an opinion of counsel acceptable to you
and the Company that such transfer is in compliance with the Securities
Act, (iv) outside
D-1
the United States to persons other than U.S. persons in offshore
transactions meeting the requirements of Rule 904 of Regulation S
under the Securities Act, (v) pursuant to the exemption form
registration provided by Rule 144 under the Securities Act (if
applicable) or (vi) pursuant to an effective registration statement,
and we further agree to provide to any person purchasing any of the
Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting each are able to bear the economic risk of our or its
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
7. We have no intention of transferring the Notes to a
resident of Canada and (a) we acknowledge that transfers of Notes to
residents of Canada may be restricted under certain circumstances and
(b) we agree to comply with any applicable Canadian provincial
securities laws in respect of any transfer of Notes to a resident of
Canada.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ___________________________________
D-2
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
___________, ____
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
NORSKE XXXX CANADA LIMITED
c/o Wells Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Re: Norske Xxxx Canada Limited (the "Company")
8-5/8% SERIES C SENIOR NOTES DUE 2011 (THE "NOTES")
Dear Sirs:
In connection with our proposed sale of US$__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "SECURITIES ACT"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or
to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
E-1
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Company are each entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________________
E-2
EXHIBIT F
[FORM OF GUARANTEE]
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of May 15, 2003 by and between Norske Xxxx Canada Limited, as issuer,
the Guarantors and Xxxxx Fargo Bank Minnesota, National Association, as Trustee
(as amended, restated or supplemented from time to time, the "Indenture"), and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in Article Ten of the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that 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.
The obligations of the Guarantors to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture and reference is hereby made to the Indenture for
the precise terms and limitations of this Guarantee.
[Signatures on Following Pages]
F-1
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guarantee to be signed by a duly authorized officer.
THE GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA (JAPAN) LTD.
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA FINANCE LIMITED
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA PULP OPERATIONS LIMITED
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA PULP SALES INC.
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA SALES INC.
By: _______________________________________
Name:
Title:
F-2
NORSKE XXXX CANADA SERVICES
(HUNGARY) LIMITED LIABILITY COMPANY
By: _______________________________________
Name:
Title:
NORSKE XXXX CANADA (USA) Inc.
By: _______________________________________
Name:
Title:
NSCL HOLDINGS INC.
By: _______________________________________
Name:
Title:
PACIFICA PAPERS SALES LTD.
By: _______________________________________
Name:
Title:
PACIFICA PAPERS SALES INC.
By: _______________________________________
Name:
Title:
PACIFICA POPLARS LTD.
By: _______________________________________
Name:
Title:
PACIFICA POPLARS INC.
By: _______________________________________
Name:
Title:
F-3
PACIFICA PAPERS US INC.
By: _______________________________________
Name:
Title:
NORSKECANADA
by its managing general partner,
Norske Xxxx Canada Limited
By: _______________________________________
Name:
Title:
Dated:
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