CATALYST PAPER CORPORATION and WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE SECOND SUPPLEMENTAL INDENTURE Dated as of April 10, 2008 to INDENTURE Dated as of March 23, 2004 by and among CATALYST PAPER CORPORATION, as Issuer The GUARANTORS named...
________________________________________________________________________________
CATALYST
PAPER CORPORATION
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
___________________
Dated as
of April 10, 2008
to
INDENTURE
Dated as
of March 23, 2004
by and
among
CATALYST
PAPER CORPORATION, as Issuer
The
GUARANTORS named therein
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
___________________
7 3/8%
Senior Notes Due March 1, 2014
________________________________________________________________________________
REAFFIRMATION
OF OBLIGATIONS OF THE GUARANTORS
|
Section
1.01
|
Reaffirmation
|
2
|
ARTICLE
II
GUARANTEE
OF NOTES
|
Section
2.01
|
Guarantee
|
2
|
|
Section
2.02
|
Execution
and Delivery of
Guarantee
|
3
|
|
Section
2.03
|
Limitation
of
Guarantee
|
3
|
|
Section
2.04
|
Release
of
Guarantor
|
4
|
|
Section
2.05
|
Assumption
of Terms of the
Indenture
|
4
|
ARTICLE
III
MISCELLANEOUS
PROVISIONS
|
Section
3.01
|
Terms
Defined
|
4
|
|
Section
3.02
|
Indenture
|
4
|
|
Section
3.03
|
Governing
Law
|
4
|
|
Section
3.04
|
Successors
|
4
|
|
Section
3.05
|
Multiple
Counterparts
|
4
|
|
Section
3.06
|
Effectiveness
|
5
|
|
Section
3.07
|
Trustee
Disclaimer
|
5
|
|
Section
3.08
|
Agent
for Service, Submission to Jurisdiction, Waiver of
Immunities
|
5
|
SECOND SUPPLEMENTAL INDENTURE dated as of April 10, 2008, by and
among CATALYST PAPER CORPORATION, formerly named NORSKE ▇▇▇▇ CANADA LIMITED, a
Canadian corporation (the "Company"), CATALYST
PAPER (SNOWFLAKE) INC., a Delaware corporation, CATALYST PAPER RECYCLING INC., a
Delaware corporation, THE APACHE RAILWAY COMPANY, an Arizona corporation
(together with Catalyst Paper (Snowflake) Inc. and Catalyst Paper Recycling,
Inc., the "New
Guarantors"), the guarantors set forth on the signature pages hereto (the
"Existing
Guarantors", and together with the New Guarantors, the "Guarantors"), and
▇▇▇▇▇ FARGO BANK, 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 March 23, 2004, as supplemented and amended by
the first supplemental indenture, dated as of July 14, 2006, by and between the
Company, the guarantors named therein and the Trustee, and as amended by the
release of released guarantors (the “Release”), dated as
of April 10, 2008, by and between the Company and the Trustee (collectively, the
"Indenture"),
providing for the issuance of an unlimited principal amount of the Company's 7
3/8% Senior Notes Due March 1, 2014 (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 Section 13.05 of the Indenture, each of Catalyst Paper Japan Ltd.
and Pacifica Paper Sales Ltd. has been released from all of its obligations as
guarantor under the Indenture, as set forth in the Release; and
WHEREAS,
the Company is the indirect owner of all of the issued and outstanding shares of
the New Guarantors following the closing on the date hereof of the acquisition
of the Snowflake Mill and The Apache Railway Company from Abitibi Consolidated
Sales Corporation; and
WHEREAS,
the Indenture provides that under certain circumstances the New Guarantors shall
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantors shall unconditionally guarantee all of the Company's
obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the "Guarantee");
and
WHEREAS,
the New Guarantors desire, by this Second Supplemental Indenture (the "Second Supplemental
Indenture"), to unconditionally guarantee all of the Company's
obligations under the Notes and the Indenture on the terms set forth herein;
and
WHEREAS,
the Existing Guarantors desire, by this Second Supplemental Indenture, to
expressly reaffirm, jointly and severally, the obligations of the Existing
Guarantors under the Indenture and under Guarantees endorsed on the Notes;
and
WHEREAS,
all the conditions and requirements necessary to make this Second Supplemental
Indenture a valid, binding and legal instrument in accordance with its terms
have been performed and fulfilled by the parties hereto and the execution and
delivery thereof have been in all respects duly authorized by the parties
hereto.
NOW,
THEREFORE, in consideration of the above premises, each party agrees, for the
benefit of the others and for the equal and ratable benefit of the Holders of
the Notes, as follows:
ARTICLE
I
REAFFIRMATION
OF OBLIGATIONS OF THE GUARANTORS
Section
1.01 Reaffirmation. Each Existing Guarantor hereby expressly
and unconditionally reaffirms each and every covenant, agreement and undertaking
of such Existing Guarantor in the Indenture, and also hereby expressly and
unconditionally reaffirms each and every covenant, agreement and undertaking in
its Guarantee endorsed on the Notes outstanding on the date of this Second
Supplemental Indenture and in each Guarantee endorsed on any Notes delivered hereafter.
ARTICLE
II
GUARANTEE
OF NOTES
Section
2.01 Guarantee.
Each New
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 the Notes
will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal of, and premium
if any, and (to the extent permitted by law) interest and all other obligations
of the Company or any Guarantor to the Holders or the Trustee hereunder or
thereunder (including amounts due the Trustee under Section 6.07 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, each New Guarantor will be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under the Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes or the Trustee to accelerate the obligations of the Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Company.
Each New
Guarantor, by execution of this Guarantee, agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Indenture or the Notes, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, any release of any other Guarantor, the recovery
of any judgment against the Company, any action to enforce the same, whether or
not a Guarantee is affixed to any particular Note, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each New Guarantor, by execution of this Guarantee, waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that the Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes, the Indenture
and this Guarantee. This Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or 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. Each New 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 Thirteen of the
Indenture, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five 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 Five of the
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by each New Guarantor for the purpose of this
Guarantee.
This
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No
shareholder, officer, director, employee or incorporator, past, present or
future, of each New Guarantor, as such, shall have any personal liability under
this Guarantee by reason of his, her or its status as such shareholder, officer,
director, employee or incorporator.
Section
2.02 Execution and Delivery Of Guarantee.
To
further evidence the Guarantee set forth in Section 2.01 hereof, each New
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form included in Annex C of the Indenture, shall be endorsed on each Note
authenticated and delivered by the Trustee after Article Thirteen of the
Indenture with respect to such New Guarantor becomes effective in accordance
with Section 10.13 of the Indenture and such Guarantee shall be executed by
either manual or facsimile signature of an Officer of each New Guarantor. The
validity and enforceability of the Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
Each New
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 any New Guarantor whose signature is on the Indenture or a Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which such Guarantee is endorsed or at any time thereafter, such New Guarantor's
Guarantee of such Note shall be valid nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof under the
Indenture, shall constitute due delivery of the Guarantee set forth in the
Indenture on behalf of each New Guarantor.
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 10.10 and 8.01 thereof);
(ii) the
Guarantor merges or amalgamates 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 8.01 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
Thirteen of the Indenture.
Section 2.05 Assumption of
Terms of The Indenture. Each New Guarantor hereby assumes,
agrees to be bound and shall have the benefit of all obligations and terms of
the Indenture applicable to a Guarantor.
ARTICLE
III
MISCELLANEOUS
PROVISIONS
Section 3.01 Terms
Defined. For all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Second Supplemental Indenture and defined
in the Indenture have the meanings specified in the
Indenture.
Section 3.02 Indenture.
Except as amended hereby, the Indenture and the Notes are in all respects
ratified and confirmed and all the terms shall remain in full force and
effect.
Section 3.03 Governing
Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
3.04 Successors. All agreements of the Company and
any Guarantor in the Indenture and the Notes shall bind their respective
successors. All agreements of the Trustee, any additional trustee and any Paying
Agents in the Indenture or this Second Supplemental Indenture shall bind its
successor.
Section 3.05 Multiple
Counterparts. The parties may sign multiple counterparts of
this Second Supplemental Indenture and deliver original signature pages or .pdf
or facsimile copies thereof. Each signed counterpart so delivered
shall be deemed an original, but all of them together represent the same
agreement.
Section
3.06 Effectiveness. The provisions of this Second Supplemental
Indenture will take effect immediately upon its execution and delivery by the
Trustee in accordance with the provisions of Article Nine of the
Indenture.
Section 3.07 Trustee
Disclaimer. The Trustee accepts the amendment of the Indenture
effected by this Second Supplemental Indenture and agrees to execute the trust
created by the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to
any of the recitals or statements contained herein, all of which recitals or
statements are made solely by the Company and the Guarantors, or for or with
respect to (i) the validity or sufficiency of this Second Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization hereof
by the Company and each Guarantor by corporate action or otherwise, (iii) the
due execution hereof by the Company and each Guarantor, (iv) the consequences
(direct or indirect and whether deliberate or inadvertent) of any amendment
herein provided for, and the Trustee makes no representation with respect to any
such matters.
Section 3.08 Agent for
Service; Submission to Jurisdiction; Waiver of Immunities. By
the execution and delivery of this Second Supplemental Indenture, each of the
Company and each Guarantor (i) acknowledges that it has, by separate written
instrument, designated and appointed CT Corporation System as its authorized
agent upon which process may be served in any suit, action or proceeding arising
out of or relating to the Notes, the Indenture or this Second 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 1.05 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 each New Guarantor, if any, appointed
and acting in accordance with this Section 3.08.
SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first written above.
THE NEW
GUARANTORS: CATALYST
PAPER (SNOWFLAKE) INC.
By:
“▇▇▇▇▇▇▇ ▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President
CATALYST
PAPER RECYCLING INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Secretary
THE
APACHE RAILWAY COMPANY
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Secretary
THE
COMPANY: CATALYST
PAPER CORPORATION
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President and General Counsel
THE
EXISTING
GUARANTORS: CATALYST
PAPER
by its managing partner
Catalyst Paper
Corporation
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President and General Counsel
CATALYST
PAPER FINANCE LIMITED
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PAPER HOLDINGS INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PAPER (USA) INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PULP AND PAPER SALES INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PULP OPERATIONS LIMITED
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PULP SALES INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
ELK FALLS
PULP AND PAPER LIMITED
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
CATALYST
PAPER SERVICES (HUNGARY) LIMITED LIABILITY COMPANY
By: “▇▇▇
▇▇▇▇▇’
Name: ▇▇▇
▇▇▇▇▇
Title: Managing
Director
By: “Erszebet
Gati”
Name: Erszebet
Gati
Title: Managing
Director
PACIFICA
PAPERS SALES INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
PACIFICA
PAPERS US INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
PACIFICA
POPLARS INC.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
PACIFICA
POPLARS LTD.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
0606890
B.C. LTD.
By: “▇▇▇▇▇▇▇
▇▇▇▇▇▇”
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Secretary and Legal Counsel
THE
TRUSTEE: ▇▇▇▇▇
FARGO BANK, NATIONAL
ASSOCIATION,
AS TRUSTEE
By: “▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇”
Name:
Title:
[Signature
Pages to Second Supplemental Indenture of 7 3/8% Senior
Notes]