EXHIBIT 10.16
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NORSKE XXXX CANADA LIMITED
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of January 31, 2003
to
INDENTURE
Dated as of August 14, 2001
by and among
NORSKE XXXX CANADA LIMITED, as Issuer
The GUARANTORS named therein
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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$250,000,000
8 5/8% Senior Notes Due 2011
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ARTICLE I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 Assumption and Reaffirmation...............................2
ARTICLE II
GUARANTEE OF NOTES
Section 2.01 Guarantee..................................................2
Section 2.02 Execution and Delivery of Guarantee........................3
Section 2.03 Limitation of Guarantee....................................4
Section 2.04 Release of Guarantor.......................................4
Section 2.05 Assumption of Terms of the Indenture.......................5
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01 Terms Defined..............................................5
Section 3.02 Indenture..................................................5
Section 3.03 Governing Law..............................................5
Section 3.04 Successors.................................................5
Section 3.05 Multiple Counterparts......................................5
Section 3.06 Effectiveness..............................................5
Section 3.07 Trustee Disclaimer.........................................5
Section 3.08 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.......................................6
FIFTH SUPPLEMENTAL INDENTURE dated as of January 31, 2003, by and among
NORSKE XXXX CANADA LIMITED, a Canadian corporation (the "COMPANY"), NORSKE XXXX
CANADA (JAPAN) LTD., a Japanese corporation (the "ASSUMING GUARANTOR"), the
guarantors set forth on the signature pages hereto (the "EXISTING GUARANTORS",
and together with the Assuming Guarantor, the "GUARANTORS"), and XXXXX FARGO
BANK MINNESOTA, NATIONAL ASSOCIATION as trustee under the hereafter defined
Indenture (the "TRUSTEE").
WHEREAS, the Company and the Existing Guarantors previously executed
and delivered to the Trustee an indenture dated as of August 14, 2001, as
supplemented by a First Supplemental Indenture dated as of August 28, 2001 (the
"FIRST SUPPLEMENTAL INDENTURE"), and a Second Supplemental Indenture dated as of
September 1, 2001 (the "SECOND SUPPLEMENTAL INDENTURE"), a Third Supplemental
Indenture dated as of September 30, 2002 (the "THIRD SUPPLEMENTAL INDENTURE")
and a Fourth Supplemental Indendure dated as of October 8, 2002 (the "FOURTH
SUPPLMENTAL INDENTURE") (as supplemented, the "INDENTURE"), providing for the
issuance of up to $250,000,000 aggregate principal amount of the Company's
8 5/8% Senior Notes Due 2011 (the "NOTES"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture, Notes in the aggregate principal amount of $250,000,000; and
WHEREAS pursuant to a Merger Agreement dated as of January 31, 2003,
Pacifica Papers Kabushiki Kaisha, Norse Xxxx Pulp Sales (Japan) Ltd. and Norske
Xxxx Canada (Japan) Ltd. intend to merge under the laws of Japan and continue as
the Assuming Guarantor; and
WHEREAS, the Indenture provides that under certain circumstances the
Assuming Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Assuming Guarantor shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "GUARANTEE"); and
WHEREAS, the Assuming Guarantor desires by this Fifth Supplemental
Indenture (the "FIFTH SUPPLEMENTAL INDENTURE"), to expressly assume the
obligations of the Company under the Indenture and the Notes; and
WHEREAS, the Existing Guarantors desire, by this Fifth Supplemental
Indenture, to expressly reaffirm, jointly and severally, the obligations of the
Guarantors under the Indenture and under the Guarantees endorsed on the Notes;
and
WHEREAS, the execution and delivery of this Fifth Supplemental
Indenture has been duly and validly authorized by a resolution of the directors
of the Company and each of the Guarantors; and
WHEREAS, all the conditions and requirements necessary to make this
Fifth Supplemental Indenture a valid, binding and legal instrument in accordance
with its terms have been performed and fulfilled by the parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto.
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NOW, THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the others and for the equal and ratable benefit of
the Holders of the Notes, as follows:
ARTICLE I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 ASSUMPTION AND REAFFIRMATION. Each Existing Guarantor
hereby expressly and unconditionally reaffirms each and every covenant,
agreement and undertaking of such Existing Guarantor in the Indenture, and also
hereby expressly and unconditionally reaffirms each and every covenant,
agreement and undertaking in its Guarantee endorsed on the Notes outstanding on
the date of this Fifth Supplemental Indenture and in each Guarantee endorsed on
any Notes delivered hereafter.
ARTICLE II
GUARANTEE OF NOTES
Section 2.01 GUARANTEE. The Assuming Guarantor hereby 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 the
Indenture, the Notes or the obligations of the Company or any other Guarantors
to the Holders or the Trustee hereunder or thereunder; or (ii) the absence of
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or default of a Guarantor, that: (a)
the principal of, premium, if any, interest on and Additional Amounts, if any,
with respect to the Notes will be duly and punctually paid in full when due,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and (to the extent permitted by law) interest or on Additional
Amounts, if any, with respect to the Notes and all other obligations of the
Company or any Guarantor to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07 of the Indenture) and all
other obligations under the Indenture or the Notes will be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Company to
the Holders, for whatever reason, the Assuming Guarantor will be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under the Indenture or the Notes shall constitute an event of default
under this Guarantee, and shall entitle the Holders of Notes or the Trustee to
accelerate the obligations of the Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company.
The Assuming Guarantor, by execution of this Guarantee, agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Indenture or the Notes, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. The Assuming
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Guarantor, by execution of this Guarantee, waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that the Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Guarantee. This
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
Assuming Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (a) subject to Article Ten of the
Indenture, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Six of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six of the
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Assuming Guarantor for the purpose of this
Guarantee.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No shareholder, officer, director, employee or incorporator, past,
present or future, of the Assuming Guarantor, as such shall have any personal
liability under this Guarantee by reason of his, her or its status as such
shareholder, officer, director, employee or incorporator.
Section 2.02 EXECUTION AND DELIVERY OF GUARANTEE. To further
evidence the Guarantee set forth in Section 2.01 hereof, the Assuming Guarantor
hereby agrees that a notation of such Guarantee, substantially in the form
included in EXHIBIT F of the Indenture, shall be endorsed on each Note
authenticated and delivered by the Trustee after Article 10 of the Indenture
with respect to such Assuming Guarantor becomes effective in accordance with
Section 4.13 of the Indenture and such Guarantee shall be executed by either
manual or facsimile signature of an Officer of the Assuming Guarantor. The
validity and enforceability of the Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
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The Assuming Guarantor hereby agrees that its Guarantee set forth in
Section 2.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer of the Assuming Guarantor whose signature is on the
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, the Assuming Guarantor's Guarantee of such Note shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Guarantee set
forth in the Indenture on behalf of the Assuming Guarantor.
Section 2.03 LIMITATION OF GUARANTEE. The obligations of each
Guarantor are limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under the Indenture, result in the
obligations of such Guarantor under the Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in a PRO RATA amount based on the net
assets of each Guarantor, determined in accordance with GAAP.
Section 2.04 RELEASE OF GUARANTOR. A Guarantor shall be released
from all of its obligations under its Guarantee if:
(i) the Guarantor has sold all of its assets or the Company and its
Restricted Subsidiaries have sold all of the Capital Stock of the
Guarantor owned by them, in each case in a transaction in
compliance with the terms of the Indenture (including Sections
4.10 and 5.01 thereof);
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company
or another Guarantor in a transaction in compliance with Section
5.01 of the Indenture; or
(iii) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of the Indenture;
and in each such case, the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder and under the
Indenture.
If all of the conditions to release contained in this Section 2.04 and
the Indenture have been satisfied, the Trustee shall execute any documents
reasonably requested by the Company or any Guarantor in order to evidence the
release of such Guarantor from its obligations under its Guarantee endorsed on
the Notes and under Article Ten of the Indenture.
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Section 2.05 ASSUMPTION OF TERMS OF THE INDENTURE. Each Assuming
Guarantor hereby assumes, agrees to be bound and shall have the benefit of all
obligations and terms of the Indenture applicable to a Guarantor.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01 TERMS DEFINED. For all purposes of this Fifth
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this Fifth Supplemental
Indenture and defined in the Indenture have the meanings specified in the
Indenture.
Section 3.02 INDENTURE. Except as amended hereby, the Indenture,
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Notes are in all respects ratified and confirmed
and all the terms shall remain in full force and effect.
Section 3.03 GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 3.04 SUCCESSORS. All agreements of the Company and any
Guarantor in the Indenture and the Notes shall bind their respective successors.
All agreements of the Trustee, any additional trustee and any Paying Agents in
the Indenture or this Fifth Supplemental Indenture shall bind its successor.
Section 3.05 MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this Fifth Supplemental Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent the same agreement.
Section 3.06 EFFECTIVENESS. The provisions of this Fifth
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Article Eight of
the Indenture.
Section 3.07 TRUSTEE DISCLAIMER. The Trustee accepts the amendment
of the Indenture effected by this Fifth Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby amended, and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for or
with respect to any of the recitals or statement contained herein, all of which
recitals or statements are made solely by the Company and the Guarantors, or for
or with respect to (i) the validity or sufficiency of this Fifth Supplemental
Indenture or any of the terms
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or provisions hereof, (ii) the proper authorization hereto by the Company and
each Guarantor by corporate action or otherwise, (iii) the due execution hereto
by the Company and each Guarantor, (iv) the consequences (direct or indirect and
whether deliberate or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
Section 3.08 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER
OF IMMUNITIES. By the execution and delivery of this Fifth Supplemental
Indenture, each of the Company and each Guarantor (i) acknowledges that it has,
by separate written instrument, designated and appointed CT Corporation System
as its authorized agent upon which process may be served in any suit, action or
proceeding arising out of or relating to the Notes, the Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture or this Fifth Supplemental Indenture, that may be
instituted in any Federal or State court in the State of New York, Borough of
Manhattan, or brought under Federal or State securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such
suit, action or proceeding, and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to it (mailed or delivered
to its Executive Director at its principal office as specified in Section 11.02
of the Indenture), shall be deemed in every respect effective service of process
upon it in any such suit or proceeding. Each of the Company and each Guarantor
further agree to take any and all action, including the execution and filing of
any and all such documents and instruments as may be necessary to continue such
designation and appointment of CT Corporation System, in full force and effect
so long as the Indenture shall be in full force and effect; provided that the
Company may and shall (to the extent CT Corporation System ceases to be able to
be served on the basis contemplated herein), by written notice to the Trustee,
designate such additional or alternative agents for service of process under
this Section 3.08 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (x)
counsel for the Company or (y) a corporate service company which acts as agent
for service of process for other Persons in the ordinary course of its business
and (iii) agrees to act as agent for service of process in accordance with this
Section 3.08. Such notice shall identify the name of such agent for process and
the address of such agent for process in the Borough of Manhattan, The City of
New York, State of New York. Upon the request of any Holder, the Trustee shall
deliver such information to such Holder. Notwithstanding the foregoing, there
shall, at all times, be at least one agent for service of process for the
Company and the Assuming Guarantor, if any, appointed and acting in accordance
with this Section 3.08.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the date first written above.
THE ASSUMING GUARANTOR:
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE COMPANY:
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE EXISTING GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
8
NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA SERVICES (HUNGARY)
LIMITED LIABILITY COMPANY
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA (USA) INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NSCL HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
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PACIFICA PAPERS US INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKECANADA BY ITS MANAGING PARTNER
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AS TRUSTEE
By: /s/ Xxxxxx X. X'Xxxxxxx
--------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Corporate Trust Officer
