UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 25, 2014
MERCER INTERNATIONAL INC.
(Exact name of Registrant as specified in its charter)
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Washington |
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000-51826 |
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47-0956945 |
(State or other jurisdiction of
incorporation or organization) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
Suite 1120, 700 West Pender Street, Vancouver, British Columbia, Canada V6C 1G8
(Address of principal executive office)
(604) 684-1099
(Registrants telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01 |
ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. |
The following summary set forth below in
this Item 1.01 is not complete and qualified in its entirety by the Supplemental Indenture, the 2019 Notes Indenture, the 2022 Notes Indenture, the 2019 Notes Registration Rights Agreement, the 2021 Notes Registration Rights Agreement and the
Stendal Revolving Credit Facility (each as defined below) which are filed with this Current Report on Form 8-K as Exhibits 4.1, 4.2, 4.4, 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.
2017 Notes Supplemental Indenture
On
November 26, 2014, Mercer International Inc. (the Company) and Wells Fargo Bank, National Association, as trustee, entered into a supplemental indenture (the Supplemental Indenture), in order to give effect to certain
amendments to the indenture (the 2017 Notes Indenture), dated November 17, 2010, governing the Companys 9.500% senior notes due 2017 (the 2017 Notes), as set forth in the Companys offer to purchase and
consent solicitation dated November 12, 2014. The amendments remove substantially all of the restrictive covenants, certain events of default and related provisions in the 2017 Notes Indenture.
2019 Notes and 2022 Notes Indentures
On
November 26, 2014, the Company and Wells Fargo Bank, National Association, as trustee, entered into an indenture (the 2019 Notes Indenture) with respect to the Companys issuance of 7.000% senior notes due 2019 in an aggregate
principal amount of $250,000,000 (the 2019 Notes) and an indenture (the 2022 Notes Indenture and, together with the 2019 Notes Indenture, the Indentures) with respect to the Companys issuance of 7.750%
senior notes due 2022 in an aggregate principal amount of $400,000,000 (the 2022 Notes and, together with the 2019 Notes, the Notes). The Notes are unsecured and rank equally in right of payment with all of the Companys
existing and future unsecured senior indebtedness, effectively junior in right of payment to any of the Companys existing and future secured indebtedness to the extent of the assets securing such indebtedness and the indebtedness and other
liabilities of subsidiaries of the Company and senior in right of payment to any of the Companys future subordinated indebtedness.
Interest and
Maturity
The 2019 Notes will mature on December 1, 2019 and interest on the 2019 Notes will be payable semi-annually in arrears
on each June 1 and December 1, commencing June 1, 2015. Interest will be payable to holders of record of the 2019 Notes on the immediately preceding May 15 and November 15 and will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The 2022 Notes will mature on December 1, 2022 and interest on the 2022 Notes will be payable
semi-annually in arrears on each June 1 and December 1, commencing June 1, 2015. Interest will be payable to holders of record of the 2022 Notes on the immediately preceding May 15 and November 15 and will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Optional Redemption
At any time prior to December 1, 2016, in the case of the 2019 Notes, and prior to December 1, 2017, in the case of the 2022 Notes,
the Company may on one or more occasions redeem up to 35% of the aggregate principal amount of 2019 Notes issued under the 2019 Notes Indenture and up to 35% of the aggregate principal amount of 2022 Notes issued under the 2022 Notes Indenture at a
redemption price of 107.000% of the principal amount of 2019 Notes redeemed or 107.750% of the principal amount of 2022 Notes redeemed, as the case may be, plus accrued and unpaid interest and additional interest, if any, to, but not including, the
redemption date with the net proceeds of certain equity offerings, provided that:
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in the case of a redemption of 2019 Notes, at least 65% of the aggregate principal amount of 2019 Notes issued under the 2019 Notes Indenture
(excluding 2019 Notes held by Mercer and its subsidiaries) remains outstanding immediately after the occurrence of such redemption; |
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in the case of a redemption of 2022 Notes, at least 65% of the aggregate principal amount of 2022 Notes issued under the 2022 Notes Indenture
(excluding 2022 Notes held by Mercer and its subsidiaries) remains outstanding immediately after the occurrence of such redemption; and |
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each redemption occurs within 90 days of the date of the closing of such sale of equity interests. |
On and after December 1, 2016, the Company may redeem all or a part of the 2019 Notes, and on and after December 1, 2017, the
Company may redeem all or a part of the 2022 Notes, upon not less than 30 or more than 60 days notice to the holders, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest
(including any additional interest), if any, to (but not including) the applicable redemption date, on the 2019 Notes and/or 2022 Notes redeemed to the applicable redemption date, if redeemed during the twelve-month period beginning on
December 1 of the years indicated below, subject to the rights of holders of such Notes on the relevant record date to receive interest on the relevant interest payment date:
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2019 Notes |
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Year |
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Percentage |
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2016 |
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103.500 |
% |
2017 |
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101.750 |
% |
2018 and thereafter |
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100.000 |
% |
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2022 Notes |
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Year |
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Percentage |
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2017 |
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105.813 |
% |
2018 |
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103.875 |
% |
2019 |
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101.938 |
% |
2020 and thereafter |
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100.000 |
% |
In addition, at any time prior to December 1, 2016, in the case of the 2019 Notes, or December 1,
2017, in the case of the 2022 Notes, the Company may on one or more occasions redeem all or a part of the Notes at the make-whole premium set forth in the applicable Indenture, plus accrued and unpaid interest to (but not including) the
redemption date.
Change of Control
If a change of control event occurs (as defined under the applicable Indenture), each holder of Notes of the applicable series may require the
Company to repurchase all or a portion of that holders Notes for cash at a price equal to 101% of the aggregate principal amount of the Notes repurchased, plus any accrued but unpaid interest and additional interest, if any, on the Notes
repurchased, to the date of repurchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Certain Covenants
The Indentures contain
covenants that, among other things, limit the Companys ability and the ability of the Companys restricted subsidiaries to, directly or indirectly: (1) declare or pay any dividends or make any other payment or distribution on account
of the Companys or any of its subsidiaries equity interests; (2) purchase, redeem or otherwise retire for value any equity interest of the Company; (3) make any payment on or with respect to or purchase, redeem, defease or
otherwise acquire or retire for value any indebtedness of the Company that is contractually subordinated to the Notes; (4) incur, issue, assume or guarantee any indebtedness and issue any shares of preferred stock; (5) create, incur or
assume certain liens; (6) consolidate, merge or transfer all or substantially all of the Companys assets, unless certain conditions are met; (7) engage in transactions with affiliates, unless certain conditions are met;
(8) guarantee any other indebtedness of the Company, unless certain conditions are met; and (9) designate any restricted subsidiary to be an unrestricted subsidiary, unless such action would not cause an event of default.
In the event that the 2019 Notes and/or the 2022 Notes are rated as investment grade debt by Moodys Investors Service, Inc. and
Standard & Poors Rating Services, and no event of default has occurred, most of the aforementioned covenants as well as the Companys obligation to offer to repurchase the Notes following certain asset sale events will be
suspended with respect to the applicable series of Notes.
Events of Default
In the case of an event of default occurring and continuing, the trustee or the holders of 25% of the principal amount of the then outstanding
Notes of the affected series may declare all Notes of the affected series to be immediately due and payable, except that a default resulting from a bankruptcy, insolvency or reorganization with respect to the Company, any restricted subsidiary of
the Company that is a significant subsidiary or any group of its restricted subsidiaries that, taken together, would constitute a significant subsidiary of the Company, will automatically cause all Notes to become due and payable immediately without
further action or notice. Each of the following constitutes an event of default under each of the Indentures, as applicable:
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(1) |
default for 30 days in the payment when due of interest or additional interest, if any, with respect to the Notes of a series;
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(2) |
default in payment when due of the principal of, or premium, if any, on the Notes of a series; |
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(3) |
failure by the Company or any of its restricted subsidiaries to comply with certain provisions relating to change in control, asset sales, or
mergers, consolidations and sales of assets, in respect of a series of Notes; |
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(4) |
failure by the Company or any of its restricted subsidiaries for 60 days after notice to the Company by the trustee or the holders of at least 25%
in aggregate principal amount of Notes of the affected series then outstanding voting as a single class to comply with any of the other agreements in the applicable Indenture; |
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(5) |
default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any of its restricted subsidiaries, if that default: |
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a) |
is caused by a failure to pay principal of, or interest or premium, if any, on, such indebtedness prior to the expiration of the grace period
provided in such indebtedness on the date of such default (a Payment Default); or |
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results in the acceleration of such indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $35.0 million or more (including, in respect of either series of Notes, the
other series of Notes); |
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failure by the Company or any of its subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating in
excess of $35.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; and |
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(7) |
certain events of bankruptcy or insolvency described in the Indentures with respect to the Company or any of its restricted subsidiaries that is a
significant subsidiary or any group of subsidiary subsidiaries that, taken together, would constitute a significant subsidiary. |
Registration Rights Agreements
In
connection with the issuance and sale of the Notes, on November 26, 2014, the Company entered into (i) a registration rights agreement in respect of the 2019 Notes (the 2019 Notes Registration Rights Agreement) and (ii) a
registration rights agreement in respect of the 2022 Notes (the 2022 Notes Registration Rights Agreement and, together with the 2019 Notes Registration Rights Agreement, the Registration Rights Agreements) with Credit Suisse
Securities (USA) LLC, as representative of the initial purchasers. Under the Registration Rights Agreements, the Company agreed to use its commercially reasonable efforts to file with the Securities and Exchange Commission (the SEC) and
cause to be declared effective within 240 days after November 26, 2014, registration statements relating to an offer to issue two new series of new notes having terms substantially identical to the Notes in exchange for outstanding Notes of
each series (each, an Exchange Offer).
If the Company is not permitted by applicable law or SEC policy to consummate an Exchange Offer
or file a registration statement related to such Exchange Offer in respect of either series of Notes, then the Company will be required to file a shelf registration statement (the Shelf Registration Statement) to register resales of the
applicable series of Notes by holders thereof who satisfy certain conditions relating to the provision of info in connection with the Shelf Registration Statement. If the Company fails to satisfy these obligations, the Company may be required to pay
additional interest to holders of the Notes under certain circumstances.
Stendal Revolving Credit Facility
On November 25, 2014, our subsidiary Zellstoff Stendal GmbH (Stendal) entered into a new 75 million
revolving credit facility (the Stendal Revolving Credit Facility) with UniCredit Bank AG, Credit Suisse AG, London Branch, Royal Bank of Canada and Barclays Bank PLC as original lenders. The principal terms of the Stendal Revolving
Credit Facility provide:
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The total availability under the facility is 75.0 million. |
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The facility will mature on the earlier of October 31, 2019 and one month prior to the stated maturity of the 2019 Notes.
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The facility may be utilized in the form of cash advances or advances by letters of credit or bank guarantees of up to 5.0 million.
Borrowings accrue interest at a rate of Euribor plus a 3.50% margin. Fees of 2.25% per annum will be payable on issued but undrawn letters of credit and bank guarantees. There is a commitment fee of 1.10% per annum payable on unused
availability. |
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The facility is secured by a first ranking registered security interest on the inventories, receivables and accounts of Stendal. All shareholder
loans made by the Company to Stendal will be subordinated to the indebtedness under the facility. The lenders security interest under the facility will rank pari passu with the claims of Stendals hedge provider under its interest
rate swap. |
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The facility contains financial maintenance covenants which will be tested semi-annually on June 30 and December 31, commencing
June 30, 2015, which require Stendal to maintain certain financial ratios. |
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Stendal is permitted under such facility to make (i) distributions for regularly scheduled interest payments on its shareholder loans from the
Company in an amount of up to $23 million per year, provided it maintains pro forma liquidity (availability under the facility plus unencumbered cash) of at least 20 million and no event of default is occurring and (ii) other
distributions to the Company semi-annually, provided it maintains pro forma liquidity of at least 20 million, no event of default is occurring and it maintains certain financial ratios. |
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The facility became effective substantially concurrently with the closing of Notes offering. Stendal used borrowings of 21.0 million
under the facility in connection with the repayment of indebtedness related to its two project loan facilities. Future borrowings will be used for working capital and other general corporate purposes. |
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The facility contains other customary restrictive covenants which, among other things, govern the ability of Stendal to incur liens, sell assets,
incur indebtedness, make investments, enter into joint ventures, change its business and issue, repurchase or redeem shares. The facility also contains customary events of default. |
ITEM 2.03 |
CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT |
The information set forth under the heading 2019 Notes and 2022 Notes Indentures and Stendal Revolving Credit Facility
in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
ITEM 3.03 |
MATERIAL MODIFICATION TO THE RIGHTS OF SECURITYHOLDERS. |
The information set forth under
the heading 2017 Notes Supplemental Indenture in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Results of Tender Offer
On November 26, 2014, the Company issued a press release announcing the early tender period results of its previously announced tender
offer for the outstanding 2017 Notes. A copy of this press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Completion of Notes Offering
On
November 26, 2014, the Company issued a press release announcing the completion of its previously announced offerings of Notes. A copy of this press release is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
The Notes were sold to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the
Securities Act), and outside the United States to non-U.S. persons in reliance on Regulation S under the Securities Act.
ITEM 9.01 |
FINANCIAL STATEMENTS AND EXHIBITS. |
(d) Exhibits
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Exhibit No. |
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Description |
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4.1 |
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Supplemental Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee. |
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4.2 |
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Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee, related to 2019
Notes. |
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4.3 |
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Form of 7.000% Senior Note due 2019 (included in Exhibit 4.2 hereto). |
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4.4 |
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Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee, related to 2022
Notes. |
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4.5 |
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Form of 7.750% Senior Note due 2022 (included in Exhibit 4.4 hereto). |
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10.1 |
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Registration Rights Agreement, dated November 26, 2014, between Mercer International Inc. and Credit Suisse Securities (USA) LLC, related to 2019
Notes. |
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10.2 |
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Registration Rights Agreement, dated November 26, 2014, between Mercer International Inc. and Credit Suisse Securities (USA) LLC, related to 2022
Notes. |
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10.3
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Stendal Revolving Credit Facility, dated 25 November 2014, between Zellstoff Stendal GmbH, UniCredit Bank AG, as agent, and the lenders party
thereto. |
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99.1 |
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Press release of the Company, dated November 26, 2014, related to early tender results. |
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99.2 |
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Press release of the Company, dated November 26, 2014, related to completion of Notes offerings. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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MERCER INTERNATIONAL INC. |
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/s/ David M. Gandossi |
David M. Gandossi |
Chief Financial Officer |
Date: November 28, 2014
Exhibit Index
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Exhibit No. |
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Description |
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4.1 |
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Supplemental Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee. |
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4.2 |
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Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee, related to 2019
Notes. |
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4.3 |
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Form of 7.000% Senior Note due 2019 (included in Exhibit 4.2 hereto). |
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4.4 |
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Indenture, dated November 26, 2014, between Mercer International Inc. and Wells Fargo Bank, National Association, as trustee, related to 2022
Notes. |
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4.5 |
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Form of 7.750% Senior Note due 2022 (included in Exhibit 4.4 hereto). |
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10.1 |
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Registration Rights Agreement, dated November 26, 2014, between Mercer International Inc. and Credit Suisse Securities (USA) LLC, related to 2019
Notes. |
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10.2 |
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Registration Rights Agreement, dated November 26, 2014, between Mercer International Inc. and Credit Suisse Securities (USA) LLC, related to 2022
Notes. |
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10.3
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Stendal Revolving Credit Facility, dated 25 November 2014, between Zellstoff Stendal GmbH, UniCredit Bank AG, as agent, and the lenders party
thereto. |
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99.1 |
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Press release of the Company, dated November 26, 2014, related to early tender results. |
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99.2 |
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Press release of the Company, dated November 26, 2014, related to completion of Notes offerings. |
Exhibit 4.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (Supplemental Indenture), dated as of November 26, 2014, among Mercer
International Inc., a Washington corporation (the Company) and Wells Fargo Bank, National Association, as trustee (the Trustee).
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an indenture dated as of November 17, 2010 (the
Indenture), governing the Companys 9.500% Senior Notes due 2017 (the Notes);
WHEREAS, pursuant to its offer to purchase and consent solicitation statement dated November 12, 2014, the Company
commenced a tender offer for any and all of the outstanding Notes and solicited the consents of the Holders of the Notes to certain proposed amendments to the Indenture (the Consent and Tender Offer);
WHERAS, under Section 9.02 of the Indenture, the Company and the Trustee may amend or supplement the Indenture with the
consent of the Holders of at least a majority in aggregate principal amount of Notes then outstanding voting as a single class pursuant to the terms set forth therein;
WHEREAS, Holders of at least a majority in aggregate principal amount of Notes outstanding voting as a single class have
consented to the amendments set forth herein in connection with the Consent and Tender Offer;
WHEREAS, the Company
desires to enter into this Supplemental Indenture on the date set forth above for the purpose of making the amendments set forth herein, which amendments will become operative as set forth in Section 5(b) hereof; and
WHEREAS, all other conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal
instrument enforceable 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, the Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the Notes:
1. DEFINITIONS. For all purposes of the Indenture and this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) References. The terms
herein, hereof and other words of similar import refer to the Indenture and this Supplemental Indenture as a whole and not to any particular article, section or other subdivision; and
(b) Capitalized Terms. All capitalized terms used in this Supplemental Indenture but not defined herein shall have the
meanings assigned to such terms in the Indenture.
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2. ELIMINATION AND AMENDMENT OF CERTAIN DEFINED TERMS IN THE INDENTURE. From and as of the
Operational Time (as defined in Section 5(b) of this Supplemental Indenture), any defined terms appearing in Article 1 of the Indenture or elsewhere in the Indenture, and all references thereto, that are used solely in the sections, subsections
or provisions of the Indenture deleted from the Indenture by virtue of Section 3 of this Supplemental Indenture shall be deleted in their entireties from the Indenture.
3. AMENDMENT OF CERTAIN PROVISIONS OF ARTICLES 3, 4, 5 AND 6 OF THE INDENTURE.
(a) Amendment of Section 3.09 of the Indenture. From and as of the Operational Time, Section 3.09 of the
Indenture shall be amended by deleting such section in its entirety, together with any references thereto in the Indenture.
(b) Amendment of Article 4 of the Indenture. From and as of the Operational Time, Article 4 of the Indenture shall be
amended by deleting Sections 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20 and 4.21 in their entireties, together with any references thereto in the Indenture.
(c) Amendment of Section 5.01 of the Indenture. From and as of the Operational Time, Section 5.01 of the
Indenture shall be amended by:
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(i) |
adding and after ; at the end of clause (2) in the first paragraph of Section 5.01; |
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(ii) |
deleting clause (3) in the first paragraph of Section 5.01 in its entirety, together with any references thereto in the Indenture;
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(iii) |
deleting ; and at the end of clause (4) in the first paragraph of Section 5.01 and substituting . therefor; and
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(iv) |
deleting clause (5) in the first paragraph of Section 5.01 in its entirety, together with any references thereto in the Indenture.
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(d) Amendment of Article 6 of the Indenture. From and as of the Operational Time, Article 6 of
the Indenture shall be amended by: (i) deleting Sections 6.01(3), (4), (5), (6), (7), (8) and (9) in their entireties, together with any references thereto in the Indenture; (ii) adding and after ; at the
end of Section 6.01(1); and (iii) deleting ; at the end of Section 6.01(2) and substituting . therefor.
(e) Amendment of Additional Provisions of the Indenture. From and as of the Operational Time, any and all additional
provisions of the Indenture shall be deemed amended to reflect the intentions of the amendments provided for in this Section 3 and elsewhere herein.
4. AMENDMENT OF THE NOTES. Any corresponding provisions reflected in the Notes shall also be deemed amended in conformity herewith.
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5. EFFECT OF SUPPLEMENTAL INDENTURE; OPERATION OF AMENDMENTS.
(a) Effect of Supplemental Indenture. This Supplemental Indenture shall be immediately effective upon execution by the
Company and the Trustee and thereafter the Indenture shall be modified in accordance herewith and this Supplemental Indenture shall form a part of the Indenture for all purposes; and every Holder of the Notes heretofore authenticated and delivered
under the Indenture shall be bound hereby. Except as modified by this Supplemental Indenture, the Indenture and the Notes, and the rights of the Holders of the Notes thereunder, shall remain unchanged and in full force and effect.
(b) Operation of Amendments. Notwithstanding Section 5(b) hereof, the amendments set forth in Sections 2, 3 and 4
of this Supplemental Indenture shall not become operative unless and until the date and time (such date and time, the Operational Time) the Company has paid to each Holder that has validly tendered a consent pursuant to the terms
of the Consent and Tender Offer a consent fee of $30.00 per $1,000 in aggregate principal amount of Notes for which consents were provided.
6. MATTERS CONCERNING THE TRUSTEE. The Trustee accepts the trusts of the Indenture, as amended and supplemented by this Supplemental
Indenture, and agrees to perform the same, but only upon the terms and conditions set forth in the Indenture, as amended and supplemented by this Supplemental Indenture, to which the parties hereto and the Holders from time to time of the Notes
agree and, except as expressly set forth in the Indenture, as amended and supplemented by this Supplemental Indenture, shall incur no liability or responsibility in respect thereof. Without limiting the generality of the foregoing, the recitals
contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness, and the Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture or any
consents thereto.
7. RATIFICATION AND CONFIRMATION OF THE INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, provisions and conditions thereof shall be and remain in full force and effect.
8. MISCELLANEOUS.
(a) Binding Effect. All agreements of the Company in this Supplemental Indenture shall be binding upon the
Companys successors. All agreements of the Trustee in this Supplemental Indenture shall be binding upon its successors.
(b) Governing Law. This Supplemental Indenture shall be deemed to be a contract made under the laws of the State of New
York and for all purposes shall be governed by and construed in accordance with the laws of the State of New York.
(c)
Conflict with Trust Indenture Act of 1939. If and to the extent that any provision of this Supplemental Indenture limits, qualifies or conflicts with the duties (to the extent applicable) imposed by Sections 310-317 of the Trust Indenture
Act of 1939, as amended (the Trust Indenture Act), by operation of Section 318(c) of the Trust Indenture Act, the imposed duties shall control.
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(d) Headings for Convenience of Reference. The titles and headings of the
sections of this Supplemental 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.
(e) Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but such counterparts shall constitute but one and the same agreement.
(f)
Severability. In case any provision of this Supplemental Indenture shall be determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of the Indenture shall not in any
way be affected or impaired thereby.
(g) Effect Upon Indenture. This Supplemental Indenture shall form a part of
Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
(h) Interpretation. All the terms and conditions of both the Indenture and this Supplemental Indenture shall be read
together as though they constitute one instrument, except that, in case of conflict, the provisions of this Supplemental Indenture will control. In case of conflict between the terms and conditions contained in the Notes and those contained in the
Indenture, as modified and amended by this Supplemental Indenture, the provisions of the Indenture, as modified by this Supplemental Indenture, shall control.
(Signature page follows)
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SIGNATURES
Dated as of November 26, 2014
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MERCER INTERNATIONAL INC. |
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By: |
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/s/ David Gandossi |
Name: |
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David Gandossi |
Title: |
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Secretary and Chief Financial Officer |
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WELLS FARGO BANK, |
NATIONAL ASSOCIATION |
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By: |
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/s/ Maddy Hall |
Name: |
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Maddy Hall |
Title: |
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Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.2
EXECUTION VERSION
MERCER INTERNATIONAL INC.
7.000% SENIOR NOTES DUE 2019
INDENTURE
Dated as of November 26, 2014
Wells Fargo
Bank, National Association
Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture Act
Section |
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Indenture Section |
310 |
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(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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7.10 |
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(b) |
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7.10 |
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(c) |
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N.A. |
311 |
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(a) |
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7.11 |
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(b) |
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7.11 |
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(c) |
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N.A. |
312 |
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(a) |
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2.05 |
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(b) |
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12.03 |
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(c) |
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12.03 |
313 |
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(a) |
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7.06 |
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(b)(1) |
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N.A. |
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(b)(2) |
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7.06; 7.07 |
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(c) |
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7.06; 12.02 |
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(d) |
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7.06 |
314 |
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(a) |
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4.03; 12.05 |
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(b) |
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N.A. |
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(c)(1) |
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N.A. |
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(c)(2) |
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N.A. |
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(c)(3) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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12.05 |
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(f) |
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N.A. |
315 |
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(a) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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N.A. |
316 |
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(a) (last sentence) |
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N.A. |
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(a)(1)(A) |
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N.A. |
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(a)(1)(B) |
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N.A. |
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(a)(2) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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N.A. |
317 |
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(a)(1) |
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N.A. |
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(a)(2) |
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N.A. |
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(b) |
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N.A. |
318 |
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(a) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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12.01 |
N.A. means not applicable.
* |
This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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DEFINITIONS AND INCORPORATION
BY REFERENCE |
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Section 1.01 |
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Definitions |
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1 |
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Section 1.02 |
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Other Definitions |
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22 |
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Section 1.03 |
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Incorporation by Reference of Trust Indenture Act |
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23 |
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Section 1.04 |
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Rules of Construction |
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23 |
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ARTICLE 2
THE NOTES |
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Section 2.01 |
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Form and Dating |
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23 |
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Section 2.02 |
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Execution and Authentication |
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24 |
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Section 2.03 |
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Registrar and Paying Agent |
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24 |
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Section 2.04 |
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Paying Agent to Hold Money in Trust |
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25 |
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Section 2.05 |
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Holder Lists |
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25 |
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Section 2.06 |
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Transfer and Exchange |
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25 |
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Section 2.07 |
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Replacement Notes |
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37 |
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Section 2.08 |
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Outstanding Notes |
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37 |
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Section 2.09 |
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Treasury Notes |
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37 |
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Section 2.10 |
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Temporary Notes |
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38 |
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Section 2.11 |
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Cancellation |
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38 |
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Section 2.12 |
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Defaulted Interest |
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38 |
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ARTICLE 3
REDEMPTION AND PREPAYMENT |
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Section 3.01 |
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Notices to Trustee |
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38 |
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Section 3.02 |
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Selection of Notes to Be Redeemed or Purchased |
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39 |
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Section 3.03 |
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Notice of Redemption |
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39 |
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Section 3.04 |
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Effect of Notice of Redemption |
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40 |
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Section 3.05 |
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Deposit of Redemption or Purchase Price |
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40 |
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Section 3.06 |
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Notes Redeemed or Purchased in Part |
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41 |
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Section 3.07 |
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Optional Redemption |
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41 |
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Section 3.08 |
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Mandatory Redemption; No Sinking Fund |
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41 |
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Section 3.09 |
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Offer to Purchase by Application of Excess Proceeds |
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42 |
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ARTICLE 4
COVENANTS |
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Section 4.01 |
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Payment of Notes |
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43 |
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Section 4.02 |
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Maintenance of Office or Agency |
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44 |
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Section 4.03 |
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Reports |
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44 |
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Section 4.04 |
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Compliance Certificate |
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45 |
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Section 4.05 |
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Taxes |
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46 |
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Section 4.06 |
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Stay, Extension and Usury Laws |
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46 |
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Section 4.07 |
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Restricted Payments |
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46 |
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Section 4.08 |
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Dividend and Other Payment Restrictions Affecting Subsidiaries |
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50 |
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Section 4.09 |
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Incurrence of Indebtedness and Issuance of Preferred Stock |
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51 |
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Section 4.10 |
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Asset Sales |
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55 |
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i
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Section 4.11 |
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Transactions with Affiliates |
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57 |
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Section 4.12 |
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Liens |
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58 |
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Section 4.13 |
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Business Activities |
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58 |
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Section 4.14 |
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Corporate Existence |
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58 |
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Section 4.15 |
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Offer to Repurchase Upon Change of Control |
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59 |
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Section 4.16 |
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Payments for Consent |
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60 |
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Section 4.17 |
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Limitation on Issuances of Guarantees of Indebtedness |
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61 |
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Section 4.18 |
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Note Guarantees |
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61 |
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Section 4.19 |
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Designation of Restricted and Unrestricted Subsidiaries |
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61 |
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Section 4.20 |
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Change in Covenants When Notes Rated Investment Grade |
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62 |
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ARTICLE 5 |
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SUCCESSORS |
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Section 5.01 |
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Merger, Consolidation, or Sale of Assets |
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62 |
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Section 5.02 |
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Successor Corporation Substituted |
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63 |
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ARTICLE 6 |
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DEFAULTS AND REMEDIES |
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Section 6.01 |
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Events of Default |
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64 |
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Section 6.02 |
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Acceleration |
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65 |
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Section 6.03 |
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Other Remedies |
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66 |
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Section 6.04 |
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Waiver of Past Defaults |
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66 |
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Section 6.05 |
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Control by Majority |
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66 |
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Section 6.06 |
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Limitation on Suits |
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66 |
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Section 6.07 |
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Rights of Holders of Notes to Receive Payment |
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67 |
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Section 6.08 |
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Collection Suit by Trustee |
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67 |
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Section 6.09 |
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Trustee May File Proofs of Claim |
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67 |
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Section 6.10 |
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Priorities |
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68 |
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Section 6.11 |
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Undertaking for Costs |
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68 |
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ARTICLE 7 |
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TRUSTEE |
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Section 7.01 |
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Duties of Trustee |
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68 |
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Section 7.02 |
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Rights of Trustee |
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69 |
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Section 7.03 |
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Individual Rights of Trustee |
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70 |
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Section 7.04 |
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Trustees Disclaimer |
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70 |
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Section 7.05 |
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Notice of Defaults |
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70 |
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Section 7.06 |
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Reports by Trustee to Holders of the Notes |
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71 |
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Section 7.07 |
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Compensation and Indemnity |
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71 |
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Section 7.08 |
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Replacement of Trustee |
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72 |
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Section 7.09 |
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Successor Trustee by Merger, etc. |
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73 |
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Section 7.10 |
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Eligibility; Disqualification |
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73 |
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Section 7.11 |
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Preferential Collection of Claims Against Company |
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73 |
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ARTICLE 8 |
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LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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Section 8.01 |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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73 |
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Section 8.02 |
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Legal Defeasance and Discharge |
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73 |
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Section 8.03 |
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Covenant Defeasance |
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74 |
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Section 8.04 |
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Conditions to Legal or Covenant Defeasance |
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74 |
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ii
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Section 8.05 |
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Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions |
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75 |
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Section 8.06 |
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Repayment to Company |
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76 |
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Section 8.07 |
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Reinstatement |
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76 |
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ARTICLE 9 |
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AMENDMENT, SUPPLEMENT AND WAIVER |
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Section 9.01 |
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Without Consent of Holders of Notes |
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76 |
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Section 9.02 |
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With Consent of Holders of Notes |
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77 |
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Section 9.03 |
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Compliance with Trust Indenture Act |
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79 |
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Section 9.04 |
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Revocation and Effect of Consents |
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79 |
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Section 9.05 |
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Notation on or Exchange of Notes |
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79 |
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Section 9.06 |
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Trustee to Sign Amendments, etc. |
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79 |
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ARTICLE 10 |
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NOTE GUARANTEES |
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Section 10.01 |
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Guarantee |
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80 |
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Section 10.02 |
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Limitation on Guarantor Liability |
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81 |
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Section 10.03 |
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Execution and Delivery of Note Guarantee |
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81 |
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Section 10.04 |
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Guarantors May Consolidate, etc., on Certain Terms |
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81 |
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Section 10.05 |
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Releases |
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82 |
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ARTICLE 11 |
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SATISFACTION AND DISCHARGE |
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Section 11.01 |
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Satisfaction and Discharge |
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83 |
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Section 11.02 |
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Application of Trust Money |
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84 |
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ARTICLE 12 |
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MISCELLANEOUS |
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Section 12.01 |
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Trust Indenture Act Controls |
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84 |
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Section 12.02 |
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Notices |
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84 |
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Section 12.03 |
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Communication by Holders of Notes with Other Holders of Notes |
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85 |
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Section 12.04 |
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Certificate and Opinion as to Conditions Precedent |
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86 |
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Section 12.05 |
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Statements Required in Certificate or Opinion |
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86 |
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Section 12.06 |
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Rules by Trustee and Agents |
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86 |
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Section 12.07 |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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86 |
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Section 12.08 |
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Governing Law |
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86 |
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Section 12.09 |
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Waiver of Jury Trial |
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87 |
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Section 12.10 |
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Force Majeure |
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87 |
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Section 12.11 |
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USA Patriot Act |
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87 |
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Section 12.12 |
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No Adverse Interpretation of Other Agreements |
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87 |
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Section 12.13 |
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Successors |
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87 |
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Section 12.14 |
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Severability |
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87 |
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Section 12.15 |
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Counterpart Originals |
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87 |
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Section 12.16 |
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Table of Contents, Headings, etc. |
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88 |
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EXHIBITS
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Exhibit A |
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FORM OF NOTE |
Exhibit B |
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FORM OF CERTIFICATE OF TRANSFER |
Exhibit C |
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FORM OF CERTIFICATE OF EXCHANGE |
iii
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Exhibit D |
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FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
Exhibit E |
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FORM OF NOTATION OF GUARANTEE |
Exhibit F |
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FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS |
iv
INDENTURE dated as of November 26, 2014 between Mercer International
Inc., a Washington corporation, and Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States of America, as trustee.
WHEREAS, the Company has duly authorized the creation of a series of its debt securities denominated as the 7.000%
Senior Notes due 2019 (the Notes);
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture, to establish the Notes as provided for in this Indenture, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, the Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined below) of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY
REFERENCE
Section 1.01 |
Definitions. |
144A Global Note means a Global Note
substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
2017 Senior
Notes means the Companys 9.5% Senior Notes due 2017.
2022 Senior Notes means the
Companys 7.750% Senior Notes due 2022.
2022 Senior Notes Indenture means the indenture dated the
Issue Date between the Company and the Trustee pursuant to which the 2022 Senior Notes are being issued.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Additional Interest has the meaning assigned to that term pursuant to the Registration Rights Agreement.
Additional Notes means Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For purposes of this definition, control, 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 beneficial ownership of more than 20% (measured on a fully diluted basis) of the Voting Stock
of a Person (except as reportable on Form 13-F or Form 13-G of the SEC) will be deemed to be control. For purposes of this definition, the terms controlling, controlled by and under common control with
have correlative meanings.
1
Agent means any Registrar, co-registrar, Paying Agent or
additional paying agent.
Applicable Premium means with respect to any Note on any redemption date, the
greater of:
(1) |
1.0% of the principal amount of such Note; or |
(a) the present value at such redemption date of (i) the redemption price of such Note at
December 1, 2016 (such redemption price being set forth in Section 3.07(c)) plus (ii) all required interest payments due on such Note through December 1, 2016 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the principal amount of such Note.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial interests in any
Global Note, and the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale,
lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 4.15 and/or Section 5.01 hereof and not by the
provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the
Companys Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, none of the
following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related
transactions that involves assets having a Fair Market Value of less than $15.0 million;
(2) a transfer of
assets between or among the Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;
(4)
the sale or lease of products (including electricity, power and chemicals generated as a by-product of or from, or utilizing the facilities of, any other Permitted Business), services, accounts receivable or current assets in the ordinary course of
business and any sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business;
2
(5) the sale or other disposition of cash or Cash Equivalents;
(6) any waiver, release, settlement or surrender of intangible claims or rights in connection with the
loss or settlement of a bona fide lawsuit, release of contract, tort claims, disputes or other controversy;
(7) (i) leases or subleases or (ii) licenses or sublicenses of intellectual property or general
intangibles, in each case to third persons not interfering in any material respect with the business of the Company and its Restricted Subsidiaries;
(8) a Restricted Payment that does not violate the provisions of Section 4.07 hereof or a Permitted
Investment;
(9) the unwinding of or assignment of rights under any Hedging Obligations; and
(10) purchases, sales or other transfers of pulp, fiber, chemicals and other consumables between or among the
Company or any Restricted Subsidiary and any Unrestricted Subsidiary at market prices pursuant to arrangements approved by the Companys Board of Directors as being fair, from a financial point of view, to the Company or the applicable
Restricted Subsidiary, as the case may be; purchases, sales or other transfers of spare parts or mill consumables between any Restricted Subsidiary and any Unrestricted Subsidiary at book value; and other transactions with customers, clients,
suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, that are fair to the Company or the Restricted Subsidiary, as the case may be, in
the reasonable determination of the Companys Board of Directors.
Bankruptcy Law means Title 11,
U.S. Code or any similar federal or state law for the relief of debtors.
Beneficial Owner has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such
person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only
after the passage of time. The terms Beneficially Owns and Beneficially Owned have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly
authorized to act on behalf of such board;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members thereof; and
(4) with respect to any
other Person (including a business trust), the board of trustees or committee of such Person serving a similar function.
3
Borrowing Base means, as of any date, an amount equal to:
(1) 85% of the face amount of all accounts receivable owned by the Company and its Restricted Subsidiaries as
of the end of the most recent fiscal month preceding such date, calculated on a consolidated basis and in accordance with GAAP; plus
(2) 65% of the book value of all inventory owned by the Company and its Restricted Subsidiaries as of the end
of the most recent fiscal month preceding such date, calculated on a consolidated basis and in accordance with GAAP.
Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Business Day means any day other than a Legal Holiday.
Capital Lease Obligation means, at the time any determination is to be made, the amount of the liability in
respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty; provided that no Deemed Capitalized Leases shall be considered Capital Lease Obligations.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity or trust, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including shares of beneficial interest;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or
limited) or membership interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
Cash Equivalents means:
(1) United States dollars, Canadian dollars, Euros or Renminbi;
(2) securities issued or directly and fully guaranteed or insured by the United States, Canadian, German or
United Kingdom government or any agency or instrumentality of the United States, Canadian, German or United Kingdom government (provided that the full faith and credit of the United States, Canada, Germany or the United Kingdom is pledged in
support of those securities) having maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any lender party to the Credit Agreements or with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of B or better;
4
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable from Moodys or S&P and, in each
case, maturing within six months after the date of acquisition; and
(6) money market or other investment
company funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any person (as that term is used in Section 13(d) of the
Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the consummation of any transaction (including, without limitation, any merger or consolidation), the
result of which is that any person (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; or
(4) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or
merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance).
Clearstream means Clearstream Banking, S.A.
Company means Mercer International Inc., and any and all successors thereto.
Consolidated EBITDA means, with respect to any specified Person for any period, the Consolidated Net Income
of such Person for such period plus, without duplication:
(1) an amount equal to any extraordinary
loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income, profits or capital of such Person and its Restricted Subsidiaries for
such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such
Fixed Charges were deducted in computing such Consolidated Net Income; plus
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(4) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; plus
(5) any expenses or charges related to any transaction
or series of transactions constituting an equity offering, Permitted Investment, recapitalization or incurrence of Indebtedness permitted to be incurred by this Indenture (whether or not successful), including such fees, expenses or charges related
to (i) the offering of these Notes and the 2022 Senior Notes, (ii) the tender offer of the 2017 Senior Notes (including, without limitation, premium and consent fees) and (iii) the Companys entry into the Credit Agreements;
plus
(6) the following expenses, losses or gains to the extent such amounts were included in the
computation of Consolidated Net Income:
(i) extraordinary, non-recurring or unusual losses or expenses,
including, without limitation, restructuring charges or reserves, including severance contracts and termination costs including future lease commitments, costs to close or consolidate facilities and costs to relocate employees during such period, as
determined in good faith by the Chief Financial Officer, Controller or Treasurer of the Company, in each case, without regard to any limitations of Item 10(e) of Regulation S-K;
(ii) foreign exchange gains or losses incurred with respect to receivables (net of the impact on payables) on
product sales; and
(iii) expenses related to equipment failures (including, without limitation, costs of
repair, equipment replacement or addition) where a good faith application for the recovery of such costs from the vendor or an insurer has been made, less any such recovery and the amount of any such claim to the extent it has been finally
determined to be uncollectible, the net amount not to exceed $10.0 million in the aggregate over any twelve-month period; minus
(7) non-cash items increasing such Consolidated Net Income for such period, other than (i) the accrual of
revenue in the ordinary course of business or (ii) the reversal of non-cash expenses not added back due to the exclusions in clause (4) of this definition of Consolidated EBITDA,
in each case, on a consolidated basis for such Person and its Restricted Subsidiaries and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income, profits or capital of, and the depreciation and
amortization and other non-cash expenses of, a Restricted Subsidiary of the Company will be added to Consolidated Net Income to compute Consolidated EBITDA of the Company only to the extent that a corresponding amount would be permitted at the date
of determination to be dividended or distributed, directly or indirectly, to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.
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Consolidated Net Income means, with respect to any specified
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:
(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by
the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;
(2) solely for purposes of determining the amount available for Restricted Payments pursuant to clause
(3)(A) of the second paragraph of Section 4.07(a) hereof, the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;
(3) the cumulative effect of a change in accounting principles will be excluded; and
(4) any goodwill impairment charges pursuant to Financial Accounting Standards Board Statement No. 142 or
any asset impairment charges pursuant to Financial Accounting Standards Board Statement No. 144 will be excluded.
Consolidated Tangible Assets means, as of any date of determination, the sum of the amounts that would
appear on a consolidated balance sheet of the Company and its consolidated Restricted Subsidiaries as the total assets of the Company and its Restricted Subsidiaries, excluding goodwill, patents, trade names, trademarks, copyrights, franchises,
experimental expense, organization expense and any other assets properly classified as intangible assets in accordance with GAAP, determined in accordance with GAAP.
continuing means, with respect to any Default or Event of Default, that such Default or Event of Default
has not been cured or waived.
Corporate Trust Office of the Trustee for administration
purposes will be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company. With respect to presentation of Notes or for registration of transfer or exchange,
625 Marquette Avenue, Minneapolis, MN 55402, Attention Bondholder Communications.
Credit Agreements
means (i) the Revolving Credit Facility Agreement dated August 19, 2009 among D&Z Holding GmbH, Zellstoff-und Papierfabrik Rosenthal GmbH, D&Z Beteiligungs GmbH and ZPR Logistik GmbH and Bayerische Hypo-und Vereinsbank AG,
as amended by the Extension, Amendment and Confirmation Letter dated October 4, 2012; (ii) the Universal Contract for Business Loans dated April 30, 2013 between Zellstoff-und Papierfabrik Rosenthal GmbH and Kreissparkasse Saale-Orla,
as supplemented by the Special Agreement to the Loan Agreement dated April 30, 2013 among Zellstoff-und Papierfabrik Rosenthal GmbH, D&Z Beteiligungs GmbH, D&Z Holding GmbH, Mercer International Inc. and Kreissparkasse Saale-Orla; and
(iii) the Second Amended and Restated Credit Agreement dated as of May 2, 2013 among Zellstoff Celgar Limited Partnership, as borrower, and the lenders from time to time parties thereto, as lenders, and Canadian Imperial Bank of Commerce,
as agent, as amended by the First Amending Agreement dated October 21, 2014.
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Credit Facilities means, one or more debt facilities
(including, without limitation, the Credit Agreements), indentures or commercial paper facilities, in each case, with banks or other institutional lenders, accredited investors or institutional investors providing for revolving credit loans, term
loans, term debt, debt securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, extended, increased, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in
part from time to time.
Custodian means the Trustee, as custodian with respect to the Notes in global
form, or any successor entity thereto.
Customary Recourse Exceptions means, with respect to any
Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud, misapplication of cash, environmental claims,
waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.
Deemed Capitalized Leases means obligations of the Company or any Restricted Subsidiary of the Company that
are classified as capital lease obligations under GAAP due to the application of ASC Topic 840 or any subsequent pronouncement having similar effect and, except for such regulation or pronouncement, such obligation would not constitute a
Capital Lease Obligation.
Default means any event that is, or with the passage of time or the giving
of notice or both would be, an Event of Default.
Definitive Note means a certificated Note registered
in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of
Interests in the Global Note attached thereto.
Depositary means, with respect to the Notes
issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant
to the applicable provision of this Indenture.
Disqualified Stock means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence,
any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof.
The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the Stated Maturity of, or pursuant to
any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
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Domestic Subsidiary means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the Company.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights Agreement.
Existing Indebtedness means the Indebtedness of the Company and its Restricted Subsidiaries (other than
Indebtedness under the Credit Agreements) in existence on the Issue Date, including Hedging Obligations, until such amounts are repaid.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated willing seller
in a transaction not involving distress or necessity of either party. In the case of a transaction not exceeding $20.0 million, Fair Market Value may be determined in good faith by the Chief Financial Officer, Controller or Treasurer of the Company,
and in the case of a transaction exceeding $20.0 million, Fair Market Value shall be determined in good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).
Fixed Charge Coverage Ratio means, with respect to any specified Person for any period, the ratio of the
Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases
or otherwise discharges any Indebtedness (other than ordinary working capital borrowings or revolving borrowings under Credit Facilities) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will
be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of
the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) such calculation may include
adjustments appropriate to reflect the amount of net cost savings, operating improvements or synergies projected by the Company in good faith to be realized within twelve months following the date of any operational changes, business realignment
projects or initiatives, restructurings or reorganizations which have been or are intended to be initiated (other than those operational changes, business realignment projects or initiatives, restructurings or reorganizations entered into in
connection with any pro forma event (as defined in clause (2) below)) (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized
during such period from such actions; provided that such net cost savings and operating improvements or synergies are reasonably identifiable and quantifiable; provided, further, that the aggregate amount of any such adjustments
made pursuant to this clause (1) shall not exceed 15% of Consolidated EBITDA for such period (determined after giving effect to such adjustments);
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(2) Investments, acquisitions, dispositions, mergers,
amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, that the specified Person or any of its Restricted Subsidiaries has made during the
four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a pro forma event) shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, or discontinued operations (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the specified Person or any of its Restricted
Subsidiaries since the beginning of such period shall have consummated any pro forma event that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma
effect thereto for such period as if such pro forma event had occurred at the beginning of the applicable four-quarter period;
(3) whenever pro forma effect is to be given to any pro forma event, the pro forma
calculations shall be made in good faith by the Chief Financial Officer, Controller or Treasurer of the specified Person. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of
the specified Person as set forth in an Officers Certificate, to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event within 12 months of the date the
applicable event is consummated. For the avoidance of doubt, adjustments to the computation of the Fixed Charge Coverage Ratio arising from any pro forma event and made in accordance with this clause (3) and clause (2) immediately
above shall not be subject to the 15% cap set forth in clause (1) of this definition;
(4) any Person
that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a
Restricted Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a
floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to
such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 6 months).
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Fixed Charges means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, original issue discount, non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market
valuation of Hedging Obligations in accordance with GAAP and excluding amortization and write-offs of debt issuance costs), the interest component of any deferred payment obligations, the interest component of all payments associated with Capital
Lease Obligations (but excluding any interest expense attributable to Deemed Capitalized Leases), commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, and net of the effect
of all payments made or received pursuant to Hedging Obligations in respect of interest rates (excluding, for the avoidance of doubt, amounts due upon settlement of any such Hedging Obligations); plus
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized
during such period; plus
(3) any interest on Indebtedness of another Person that is guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined
on a consolidated basis in accordance with GAAP.
Foreign Subsidiary means any Restricted Subsidiary
that is not a Domestic Subsidiary.
GAAP means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issue Date.
Global Note Legend means the legend set forth in Section 2.06(g)(2) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
Global Notes means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the Schedule of Exchanges of Interests in the Global Note attached thereto, issued in accordance with Sections 2.01 and 2.06 hereof.
Government Securities means direct obligations of, or obligations guaranteed by, the United States of
America, and the payment for which the United States pledges its full faith and credit.
Guarantee
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).
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Guarantor means each Subsidiary of the Company that executes a
Note Guarantee in accordance with the provisions of this Indenture, and its successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap
agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates (including, without limitation, foreign currency futures and options, currency swaps, currency forwards and related interest rate swaps and/or forwards) or commodity prices (including, without
limitation, commodity futures, swaps or options) or energy prices (including forwards and swaps).
Holder means a Person in whose name a Note is registered on the books of the Registrar.
IAI Global Note means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.
Indebtedness means, with respect to any specified Person,
any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, Notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof);
(3) in respect of bankers acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property or services due more
than six months after such property is acquired or such services are completed, except any balance that constitutes an accrual of expenses or trade payable; or
(6) representing any Hedging Obligations (the amount of any such Hedging Obligations to be equal at any time to
the termination value of the agreement or arrangement giving rise to such Hedging Obligations that would be payable by such Person at such time),
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP, but excluding Deemed Capitalized Leases. In addition, the term Indebtedness includes all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving
effect to the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result
of accounting for any embedded derivatives created by the terms of such Indebtedness.
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Indenture means this Indenture, as amended or supplemented
from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global
Note through a Participant.
Initial Notes means the first $250.0 million aggregate principal amount of
Notes issued under this Indenture on the Issue Date.
Initial Purchasers means Credit Suisse Securities
(USA) LLC, Barclays Capital Inc., RBC Capital Markets, LLC, Macquarie Capital (USA) Inc. and Raymond James & Associates, Inc.
Institutional Accredited Investor means an institution that is an accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
Investments means, with respect to any Person, all direct or indirect investments by such Person in other
Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Companys Investments in such Restricted Subsidiary that were not sold
or disposed of in an amount determined as provided in the final paragraph of Section 4.07 hereof. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed
to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of
Section 4.07 hereof. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means November 26, 2014.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in the City of New York or
at a place of payment are authorized by law, regulation or executive order to remain closed. 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 on such payment for the intervening period.
Letter of Transmittal means the
letter of transmittal to be prepared by the Company and sent to all Holders for use in connection with the Exchange Offer.
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Lien means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
Moodys means Moodys Investors Service, Inc.
Net Income means, with respect to any specified Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (loss), together with any related provision for taxes on such gain (loss), realized in connection
with:
(i) any Asset Sale (or transaction that would be an Asset Sale but for the exclusion in clause
(1) of the second paragraph of the definition thereof); or
(ii) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries;
(2) any extraordinary gain (loss), together with any related provision for taxes on such extraordinary gain
(loss);
(3) any foreign exchange gain (loss) on Indebtedness;
(4) any marked to market gain (loss) whether realized or accrued, without duplication, on Hedging Obligations;
(5) any non-cash charges resulting from the application of ASC 718 (formerly SFAS No. 123) and any
other non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance or repricing of stock, stock options or other equity based awards or any amendment, modification, substitution or change of any such
stock, stock options or other equity based awards;
(6) all deferred financing costs written off, and
premiums paid, in connection with any early extinguishment of Indebtedness;
(7) any purchase accounting
adjustments (including, without limitation, the impact of writing up inventory, deferred marketing and deferred financing costs or deferred revenue at fair value), amortizations, impairments, write-offs, or non-cash charges with respect to purchase
accounting with respect to any acquisition, disposition, merger, consolidation, amalgamation or similar transactions on or after the Issue Date; and
(8) the net income (loss) from any operations disposed of or discontinued after the Issue Date and any net
gains or losses on such disposition or discontinuance, on an after-tax basis.
Net Proceeds means the
aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, after deducting any reserves in accordance with GAAP against any liabilities associated with the
assets disposed of in such Asset Sale and retained by the Company and/or a Restricted Subsidiary after such Asset Sale, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by
a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.
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Non-Recourse Debt means Indebtedness as to which neither the
Company nor any of its Restricted Subsidiaries:
(1) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness); or
(2) is directly or indirectly
liable as a guarantor or otherwise, except for Customary Recourse Exceptions.
Non-U.S. Person means a
Person who is not a U.S. Person.
Note Guarantee means the Guarantee by each Guarantor of the
Companys obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.
Notes has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
Obligations means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness.
Officer means, with
respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
Officers Certificate means a certificate signed on behalf of the Company by two
Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the controller, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05
hereof.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account
with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
15
Permitted Business means any business conducted by the Company
and its Restricted Subsidiaries on the Issue Date, including pulp (including softwood, hardwood, sulphate, sulphite, dissolving and other chemical pulps) manufacturing and sales business, production and generation and sales of electricity,
chemicals, chemical byproducts and other products generated as a by-product of or from, or utilizing the facilities of, any Permitted Business and any business reasonably related thereto, ancillary or complimentary to reasonable extensions thereof,
including, without limitation, the development and commercialization of processes, applications and uses for lignum-based products, materials and uses, transportation, logistics and wood and wood pellet harvesting, procurement, processing and/or
marketing and sales.
Permitted Investments means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of
such Investment:
(i) such Person becomes a Restricted Subsidiary of the Company; or
(ii) 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 of the Company;
(4) any
Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company or out of the net proceeds of an issue or sale of Equity Interest of the Company (other than Disqualified Stock) so long as such acquisition occurs within 60 days thereafter;
(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or
customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (B) litigation, arbitration or other disputes;
(7) Investments represented by Hedging
Obligations;
(8) loans or advances to employees made in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $2.0 million at any one time outstanding;
(9) repurchases of the Notes or the 2022 Senior Notes and repurchases and/or redemptions of the 2017 Senior
Notes;
(10) extensions of trade credit or advances to customers and/or suppliers on commercially
reasonable terms in the ordinary course of business;
16
(11) Guarantees of Indebtedness of the Company or any of its
Restricted Subsidiaries issued in accordance with Section 4.09 hereof;
(12) Investments resulting
from payment of consolidated taxes that include Unrestricted Subsidiaries;
(13) other Investments in any
Person (other than an Affiliate of the Company that is not a Subsidiary of the Company) having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (13) that are at the time outstanding not to exceed the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets; provided that, if any
Investment made pursuant to this clause (13) is made in a Person that is not a Restricted Subsidiary of the Company at the date of making such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (1) of this definition and shall cease to have been made pursuant to this clause (13) for so long as such person continues to be a Restricted Subsidiary of the Company; and
(14) for the avoidance of doubt, any Restricted Investments existing on the Issue Date.
Permitted Liens means:
(1) Liens on assets of the Company or any of its Restricted Subsidiaries securing Indebtedness and other
Obligations under Credit Facilities that was permitted by the terms of this Indenture to be incurred pursuant to Section 4.09(b)(1) hereof and/or securing Hedging Obligations related thereto;
(2) Liens in favor of the Company;
(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with
the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition, and not incurred in contemplation of, such acquisition;
(5) Liens to secure the performance of statutory obligations, insurance, surety or appeal bonds, workers
compensation obligations, performance bonds, letters of credit or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations);
(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4)
hereof covering only the assets acquired with or financed by such Indebtedness;
(7) Liens existing on the
Issue Date or from contractual commitments existing on the Issue Date other than Liens securing Indebtedness and other obligations incurred pursuant to Section 4.09(b)(1) hereof;
17
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with
GAAP has been made therefor;
(9) Liens imposed by law, such as carriers, warehousemens,
landlords and mechanics Liens, in each case, incurred in the ordinary course of business;
(10)
survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that
were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes or the 2022 Senior Notes;
(12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture;
provided, however, that:
(i) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and
(ii) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of
(x) the outstanding principal amount, or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
(13) Liens securing Hedging Obligations made in the
ordinary course of business and not for speculation; provided that such Hedging Obligations are permitted under this Indenture;
(14) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge,
repayment or redemption of Indebtedness;
(15) Grants of software and technology licenses in the ordinary
course of business;
(16) Liens arising out of conditional sale, title retention or similar arrangements
for the sale of goods entered into in the ordinary course of business;
(17) Liens in connection with
escrow deposits made in connection with any acquisition of assets, including Capital Stock;
(18) Liens
arising as a result of litigation or legal proceedings that are currently being contested in good faith by appropriate and diligent action, including any Lien arising as a result of a judgment against the Company and/or its Restricted Subsidiaries;
(19) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium
financings; and
18
(20) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations at any one time outstanding that do not exceed the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets.
Permitted Refinancing Indebtedness means any Indebtedness of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness);
provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith);
(2) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least
as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.
Person means
any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
Private Placement Legend means the legend set forth in Section 2.06(g)(1) hereof to be placed on all
Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
QIB means a qualified institutional buyer as defined in Rule 144A.
Registration Rights Agreement means the Registration Rights Agreement, dated as of the Issue Date, among
the Company and the other parties named on the signature pages thereto, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the
Company and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
Regulation S means Regulation S promulgated under the Securities Act.
19
Regulation S Global Note means a Global Note substantially in
the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes sold in reliance on Rule 903 of Regulation S.
Responsible Officer, when used
with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee having direct responsibility for the administration of this Indenture (or any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers 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 and having direct responsibility for the administration of this Indenture.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Period means the 40-day distribution compliance period as defined in Regulation S.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Group.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Shelf Registration Statement means the Shelf Registration Statement as defined in the Registration Rights
Agreement.
Significant Subsidiary means any Subsidiary that would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.
Stated Maturity means, with respect to any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the payment thereof.
20
Subsidiary means, with respect to any specified Person:
(1) any corporation, limited liability company, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders or other agreement that effectively transfers voting power) to vote
in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
TIA means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
Treasury Rate means as of any redemption date of the Notes, the yield to maturity as of the earlier of
(a) such redemption date or (b) the date on which the Notes are defeased or satisfied and discharged, of the most recently issued United States Treasury securities with a constant maturity (as compiled and published in the most recent
Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to December 1, 2016; provided, however, that if the period from the redemption date to December 1, 2016, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be used. Any such Treasury Rate shall be obtained by the Company.
Trustee means Wells Fargo Bank, National Association until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Unrestricted
Definitive Note means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
Unrestricted Global Note means a Global Note that does not bear and is not required to bear the Private
Placement Legend.
Unrestricted Subsidiary means any Subsidiary of the Company that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;
(3) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Persons financial condition or to cause such
Person to achieve any specified levels of operating results; and
21
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries.
All Subsidiaries of
Unrestricted Subsidiaries shall also be Unrestricted Subsidiaries.
U.S. Person means a U.S. Person as
defined in Rule 902(k) promulgated under the Securities Act.
Voting Stock of any specified Person as
of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years
obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by
(2) the then outstanding principal
amount of such Indebtedness.
Section 1.02 |
Other Definitions. |
|
|
|
|
|
Term |
|
Defined in Section |
|
Affiliate Transaction |
|
|
4.11 |
|
Asset Sale Offer |
|
|
3.09 |
|
Authentication Order |
|
|
2.02 |
|
Change of Control Offer |
|
|
4.15 |
|
Change of Control Payment |
|
|
4.15 |
|
Change of Control Payment Date |
|
|
4.15 |
|
Covenant Defeasance |
|
|
8.03 |
|
DTC |
|
|
2.03 |
|
Event of Default |
|
|
6.01 |
|
Excess Proceeds |
|
|
4.10 |
|
incur |
|
|
4.09 |
|
Legal Defeasance |
|
|
8.02 |
|
Offer Amount |
|
|
3.09 |
|
Offer Period |
|
|
3.09 |
|
Paying Agent |
|
|
2.03 |
|
Permitted Debt |
|
|
4.09 |
|
Payment Default |
|
|
6.01 |
|
Purchase Date |
|
|
3.09 |
|
Registrar |
|
|
2.03 |
|
Reinstatement Date |
|
|
4.20 |
|
Restricted Payments |
|
|
4.07 |
|
Suspended Covenants |
|
|
4.20 |
|
22
Section 1.03 |
Incorporation by Reference of Trust Indenture Act. |
Whenever this
Indenture refers to a provision of the TIA, the provision 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 securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 |
Rules of Construction. |
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) will shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 |
Form and Dating. |
(a) General. The Notes and the Trustees
certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
23
(b) Global Notes. Notes issued in global form will be substantially in the
form of Exhibit A hereto (including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the Global Note attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A hereto
(but without the Global Note Legend thereon and without the Schedule of Exchanges of Interests in the Global Note attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
Section 2.02 |
Execution and Authentication. |
At least one Officer must sign the Notes
for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by
the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by an Officer (an Authentication
Order), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of
Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate 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 Holders or an Affiliate
of the Company.
Section 2.03 |
Registrar and Paying Agent. |
The Company will maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (Registrar) and an office or agency where Notes may be presented for payment (Paying Agent). The Registrar will keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term Registrar includes any co-registrar and 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 will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
24
The Company initially appoints The Depository Trust Company
(DTC) to act as Depositary with respect to the Global Notes.
The Company initially appoints the
Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 |
Paying Agent to Hold Money in Trust. |
The Company will require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest or
Additional Interest, if any, on the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or
a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will
serve as Paying Agent for the Notes.
Section 2.05 |
Holder Lists. |
The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven
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 of Notes and the
Company shall otherwise comply with TIA § 312(a).
Section 2.06 |
Transfer and Exchange. |
(a) Transfer and Exchange of Global
Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary;
(2) subject to any limitations imposed by the Depositary pursuant to its then-current practices, the Company in
its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of Default with respect to the Notes.
25
Upon the occurrence of either of the preceding events in (1) or
(2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one
or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in
the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all
transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
26
(ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests
to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with
the requirements of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if the
transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer,
(ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any
such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or
(D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note
(c) Transfer or Exchange of Beneficial
Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in
the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if
such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
28
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer,
(ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar
receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
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(ii) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of
a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will
execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a
Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the
Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
30
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such
Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a
Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar
receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
31
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee
will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to
subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and
such Holders compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will
be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
32
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the
Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
33
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange
Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such
Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The
following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (RULE 144A)) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION PURSUANT TO RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (REGULATION S), (2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) AND THE LAST DATE ON WHICH MERCER INTERNATIONAL INC. (THE COMPANY) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE OR ANY PREDECESSOR OF THIS NOTE, OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
34
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend. xx
(2) Global Note Legend. Each Global Note will bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (570 WASHINGTON BOULEVARD, JERSEY CITY, NEW JERSEY)
(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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
(h) Cancellation and/or Adjustment of
Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note
will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
35
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will
authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(4) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment date.
(6) Prior to due
presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
36
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates
and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 |
Replacement Notes. |
If any mutilated Note is surrendered to the Trustee
or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the
Trustees requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 |
Outstanding Notes. |
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 |
Treasury Notes. |
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the
Company, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so
disregarded.
37
Section 2.10 |
Temporary Notes. |
Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 |
Cancellation. |
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company
may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 |
Defaulted Interest. |
If the Company defaults in a payment of interest on
the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the
Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date may be less than seven (7) days prior to the related payment date for such defaulted interest. At least ten (10) days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 |
Notices to Trustee. |
If the Company elects to redeem Notes pursuant to
the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date (unless such redemption is in connection with the defeasance of the Notes pursuant to
Article 8 hereof or in connection with the satisfaction and discharge of this Indenture pursuant to Article 11 hereof, in which case such delivery may occur on such earlier date as a notice of redemption is given pursuant to Section 3.03
hereof), an Officers Certificate setting forth:
(1) the clause of this Indenture pursuant to which
the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
38
(4) the redemption price.
Section 3.02 |
Selection of Notes to Be Redeemed or Purchased. |
If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase by lot in accordance with the applicable procedures of DTC unless otherwise required by law or applicable stock
exchange requirements.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in minimum amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if
all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, provided Notes are redeemed or repurchased in denominations authorized by this Indenture. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 |
Notice of Redemption. |
Subject to the provisions of Section 3.09
hereof, at least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail (in the case of Notes held in book entry form, by electronic transmission), a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Article 8 or 11 hereof.
The notice will identify the Notes to be redeemed and
will state:
(1) the redemption date;
(2) the redemption price;
(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 upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(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;
(6) that, unless the Company defaults in making such redemption payment, interest on Notes called for
redemption ceases to accrue on and after the redemption date;
39
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the
Companys request, the Trustee will give the notice of redemption in the Companys name and at its expense; provided, however, that the Company has delivered to the Trustee at least 45 days (unless a shorter period is agreed to by
the Trustee) 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.
Any such redemption may, at the Companys discretion, be subject to one or more conditions precedent, including any
related sale of Equity Interests (other than Disqualified Stock) or a Change of Control. In addition, if such redemption is subject to the satisfaction of one or more conditions precedent, the related notice shall describe each such condition, and
if applicable, shall state that, in the Companys discretion, the date of redemption may be delayed until such time as any or all such conditions shall be satisfied or waived (provided that in no event shall such redemption date be
delayed to a date later than 60 days after the date on which such notice was mailed), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the
redemption date, or by the redemption date as so delayed.
Section 3.04 |
Effect of Notice of Redemption. |
Once notice of redemption is mailed in
accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price, subject to any conditions to the redemption as permitted pursuant to the last paragraph of
Section 3.03 hereof.
Section 3.05 |
Deposit of Redemption or Purchase Price. |
One Business Day prior to the
redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest and Additional Interest, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of and
accrued interest and Additional Interest, if any, on all Notes to be redeemed or purchased.
If the Company complies with
the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for
redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until
such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
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Section 3.06 |
Notes Redeemed or Purchased in Part. |
Upon surrender of a Note that is
redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.
Section 3.07 |
Optional Redemption. |
(a) At any time prior to December 1, 2016,
the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price of 107.000% of the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to (but not including) the redemption date, with the net cash proceeds of a sale of Equity Interests (other than Disqualified Stock) of the Company; provided that:
(1) at least 65% of the aggregate principal amount of Notes issued under this Indenture (excluding Notes held
by the Company and its Subsidiaries but including any Additional Notes issued under this Indenture) remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of such sale of Equity Interests.
(b) At any time prior to December 1, 2016, the Company may on any one or more occasions redeem all or a part of the Notes
upon not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest,
if any, to (but not including) the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
(c) On or after December 1, 2016, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60
days notice to the Holders, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest (including any Additional Interest) on the Notes redeemed to (but not including) the
applicable redemption date, if redeemed during the twelve-month period beginning on December 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
|
|
|
|
|
Year |
|
Percentage |
|
2016 |
|
|
103.500 |
% |
2017 |
|
|
101.750 |
% |
2018 and thereafter |
|
|
100.000 |
% |
d) |
Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
|
Section 3.08 |
Mandatory Redemption; No Sinking Fund. |
The Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes or, except as set forth in Sections 4.10 and 4.15 hereof, to repurchase the Notes at the option of the Holders.
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Section 3.09 |
Offer to Purchase by Application of Excess Proceeds. |
In the event that,
pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an Asset Sale Offer), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the
Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, including the 2022 Senior Notes. The Asset Sale Offer will remain open for a period of at
least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the Offer Period). No later than three Business Days after the
termination of the Offer Period (the Purchase Date), the Company will apply all Excess Proceeds (the Offer Amount) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata
basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any
accrued and unpaid interest and Additional Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders (or by electronic transmission in the case of Notes held in book-entry form). The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the
Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have
a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000 in excess thereof;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to
surrender the Note, with the form entitled Option of Holder to Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be
entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a 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;
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(8) that, if the aggregate principal amount of Notes and other
pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and
such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date,
the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers Certificate stating that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or
deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than
as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 |
Payment of Notes. |
The Company will pay or cause to be paid the
principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and Additional Interest, if any, will be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at a rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace period) at the same rate to the extent lawful.
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Section 4.02 |
Maintenance of Office or Agency. |
The Company will maintain in the
Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate or agent of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange
and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served, if and to the extent required by the rules and regulations of the SEC or other relevant regulatory body. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or agency.
The Company
hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
(a) Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company will furnish to the Trustee and the Holders of Notes and to the Trustee (or file with the SEC for public availability), within the time periods specified in the SECs rules and
regulations:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms
10-Q and 10-K if the Company were required to file such reports; and
(2) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
All such reports shall be prepared in
all material respects in compliance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K shall include a report on the Companys consolidated financial statements by the Companys certified
independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations
applicable to such reports (unless the SEC will not accept such a filing). Delivery of the information, documents and other reports described above to the Trustee is for informational purposes only, and the Trustees receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively
rely on an Officers Certificate). The Trustee shall have no obligation to determine whether or not such information, documents or reports have been filed with the SEC. The Company will at all times comply with TIA § 314(a).
(b) If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any
reason, the Company will nevertheless continue filing the reports specified in the preceding paragraphs with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Company will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Companys filings for any reason, the Company will post the reports referred to in the preceding paragraph on its website
within the time periods that would apply if the Company were required to file those reports with the SEC.
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(c) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary, then the quarterly and annual financial information required by paragraph
(a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Managements Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the consolidated financial condition and results of operations of the Company.
(d) For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports
required by paragraphs (a) and (b) of this Section 4.03, the Company will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act. The Company will be deemed to have provided such information to Holders, securities analysts and prospective investors if it has filed reports containing such information with the SEC via the EDGAR filing system
and such reports are publicly available.
(e) Delivery of such reports, information and documents to the Trustee to the
extent required hereunder is for informational purposes only, the Trustee has no duty or obligation to investigate further and the Trustees receipt of such reports, information or documents shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the Companys compliance with any of the covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers
Certificate).
Section 4.04 |
Compliance Certificate. |
(a) The Company and each Guarantor (to the
extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers Certificate stating that a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing Officers (in their capacities as such and not in their personal capacities) with a view to determining whether the Company has kept, observed, performed and fulfilled its
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 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 of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes 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, premium on, if any, or interest or Additional Interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Notes are outstanding, the Company will 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 is taking or proposes to take with respect thereto.
45
Except with respect to the receipt of Note payments and any Default or Event of
Default information contained in the Officers Certificate delivered to it pursuant to this Section 4.04, the Trustee shall have no duty to monitor or investigate the Companys compliance with or the breach of any representation,
warranty or covenant made in this Indenture.
The Company will pay, and will cause each of its Restricted
Subsidiaries and any other Subsidiary with whom the Company or any Restricted Subsidiary is jointly and severally liable to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good
faith and by appropriate proceedings or where the failure to effect such payment is not reasonably expected by the Companys principal financial officer to be adverse in any material respect to the Holders of the Notes.
Section 4.06 |
Stay, Extension and Usury Laws. |
The Company and each of the Guarantors
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, 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 has been enacted.
Section 4.07 |
Restricted Payments. |
(a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any
other payment or distribution on account of the Companys or any of its Restricted Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of
its Restricted Subsidiaries) or to the direct or indirect holders of the Companys or any of its Restricted Subsidiaries Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as Restricted Payments),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing;
46
(2) the Company could have incurred at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since September 30, 2014 (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (9), (10), (11) and (12) of paragraph (b) of this Section 4.07), is less than
the sum, without duplication of:
(A) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the first fiscal quarter commencing after September 30, 2014 to the end of the Companys most recently ended fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(B) 100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received
by the Company since the Issue Date (i) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company including upon exercise of stock options whether issued before or after the Issue Date (other
than Disqualified Stock) or (ii) from the issue or sale of convertible or exchangeable Disqualified Stock or convertible, exchangeable or payment-in-kind debt securities of the Company and/or its Restricted Subsidiaries that have been converted
into, exchanged or paid for in such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus
(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the Issue Date is
redesignated as a Restricted Subsidiary after the Issue Date, the lesser of (i) the Fair Market Value of the Companys Investment in such Subsidiary as of the date of such redesignation and (ii) such Fair Market Value as of the date
on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Issue Date; plus
(E) 50% of (i) any dividends, interest, intercompany loan payments or other distributions received in
cash by the Company or a Restricted Subsidiary of the Company after the Issuer Date from an Unrestricted Subsidiary of the Company, to the extent that such dividends, interest, intercompany loan payments or other distributions were not otherwise
included in the Consolidated Net Income of the Company for such period and (ii) without duplication, any amounts received in cash by the Company or a Restricted Subsidiary of the Company after the Issue Date representing the proceeds of any
settlement of any Hedging Obligations, to the extent that such dividends or cash proceeds represent gains previously recognized under GAAP and were not otherwise included in calculating the Consolidated Net Income of the Company; less 100% of any
payment made in settlement of any Hedging Obligations of the Company and its Restricted Subsidiaries to the extent such payment represents cumulative net losses previously recognized under GAAP and not previously deducted in calculating the
Consolidated Net Income of the Company.
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(b) So long as no Default has occurred and is continuing or would be caused
thereby, the provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend
or the consummation of any redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice the dividend or redemption payment would have complied
with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of
the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to
the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with (i) the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness or (ii) after the completion
of a Change in Control Offer pursuant to the terms of Section 4.15 hereof, to the extent required pursuant to any similar change of control offer provision of the indenture or other agreement governing subordinated Indebtedness;
(4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar
distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests who are not Affiliates of the Company, except Restricted Subsidiaries of the Company, on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or former officer, director or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, share
purchase agreement, shareholders agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $10.0 million in any calendar year (with
unused amounts in any calendar year, including carried over amounts, being carried over to succeeding calendar years subject to a maximum of $15.0 million in any calendar year);
(6) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation
rights to the extent such Equity Interests represent a portion of the exercise price of those stock options or stock appreciation rights;
(7) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series
of Disqualified Stock of the Company issued on or after the Issue Date in accordance with the Fixed Charge Coverage test set forth in Section 4.09 hereof;
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(8) payments or distributions to shareholders exercising
appraisal or discount rights pursuant to applicable law pursuant to or in connection with a merger, consolidation or transfer of all or substantially all of the Company and its Restricted Subsidiaries assets that complies with the provisions
of this Indenture;
(9) in the event of a Change of Control, and if no Default or Event of Default shall
have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes or the Guarantee
(including the Exchange Notes and any Guarantees thereof) of such Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest therein; provided that
prior to or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the indenture) has made the Change of Control Offer with respect to the
Notes (including the Exchange Notes) and has repurchased all Notes (including the Exchange Notes) validly tendered and not withdrawn in connection with such Change of Control Offer;
(10) in the event of an Asset Sale which requires the Company to make an Asset Sale Offer, and if no Default or
Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes
or the Guarantee (including the Exchange Notes and any Guarantees thereof) of such Guarantor, in each case, at a purchase price not greater than 100% of the principal amount of such Indebtedness, plus any accrued and unpaid interest therein;
provided that prior to or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes (including the Exchange Notes) and has
repurchased all Notes (including the Exchange Notes) validly tendered and not withdrawn in connection with such Asset Sale Offer;
(11) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of
any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders rights plan adopted for the purpose of protecting shareholders from unfair takeover practices; provided that any such purchase,
redemption, acquisition, cancellation or other retirement of such rights shall not be for the purpose of evading the limitations of this covenant (as determined in good faith by the Board of Directors of the Company); and
(12) other Restricted Payments in an aggregate amount not to exceed $100.0 million since the Issue Date.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by
this Section 4.07 will be determined in good faith (a) in the case of assets or securities of $20.0 million or less by the Chief Financial Officer, Controller or Treasurer of the Company set forth in a certificate delivered to the Trustee,
and (b) in the case of assets or securities valued at more than $20.0 million by the Board of Directors of the Company, and set forth in an Officers Certificate delivered to the Trustee.
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For purposes of determining compliance with this Section 4.07, if any
Investment or Restricted Payment would be permitted pursuant to Section 4.07(a) hereof, one or more clauses of Section 4.07(b) hereof and/or one or more of the exceptions contained in the definition of Permitted Investments,
the Company may classify or divide such Investment or Restricted Payment in any manner that complies with this covenant and may later reclassify, divide or re-divide, in whole or in part in its sole discretion, any such Investment or Restricted
Payment in any manner that complies with this covenant so long as the Investment or Restricted Payment (as so reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
Section 4.08 |
Dividend and Other Payment Restrictions Affecting Subsidiaries. |
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted
Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; provided that the
subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing
under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities as in effect
on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(2) (A) this Indenture, the Notes and the Note Guarantees or (B) the 2022 Senior Notes Indenture, the
2022 Senior Notes and the Guarantees thereof;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation 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, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) customary non-assignment provisions in contracts and licenses entered into
in the ordinary course of business;
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(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending the sale or other disposition;
(8) Permitted Refinancing Indebtedness;
provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit
the right of the debtor to dispose of the assets subject to such Liens;
(10) provisions limiting the
disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, Capital Stock sale agreements and other similar agreements entered into with the approval of the Companys Board of
Directors, which limitation is applicable only to the assets, or (in the case of Capital Stock sales) entities, that are the subject of such agreements;
(11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in
the ordinary course of business;
(12) agreements governing Hedging Obligations;
(13) agreements governing Indebtedness permitted to be incurred by Restricted Subsidiaries of the Company under
the provisions of Section 4.09 hereof; provided that the encumbrances and/or restrictions in such agreements (except those agreements entered into pursuant to clause (15) of the definition of Permitted Debt) are
customary for Indebtedness of the type incurred and will not adversely affect the Companys ability to make payments of principal or interest on the Notes; and
(14) any Liens or restrictions imposed by any amendments of contracts, instruments or obligations referred to
in clauses (1) to (13) of this paragraph, provided that such amendments are not materially more restrictive with respect to such Liens and restrictions than those prior to any such amendment or refinancing as determined in good
faith by the Companys Board of Directors.
Section 4.09 |
Incurrence of Indebtedness and Issuance of Preferred Stock. |
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively,
incur) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any of the Companys Restricted Subsidiaries that are Guarantors may incur Indebtedness (including Acquired Debt) or issue
preferred stock, if the Fixed Charge Coverage Ratio for the Companys most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or preferred stock is issued, as the case may be, would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
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(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively, Permitted Debt):
(1) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) not to exceed the greater of (x) $250.0 million and (y) the amount of the Borrowing Base on the date of incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of Indebtedness represented by the Notes and the 2022 Senior Notes to be
issued on the Issue Date and the incurrence by any Restricted Subsidiary of any Guarantee of the Notes or the 2022 Senior Notes;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital
Lease Obligations (other than Deemed Capitalized Leases), mortgage financings, project financing or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design,
construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed at any time outstanding the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness
in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge any Indebtedness that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4), (5),
(12) or (15) of this Section 4.09(b);
(6) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and any Restricted Subsidiary that is
not a Guarantor is the payee of such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the
case of a Guarantor; and
(B) (1) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
52
(7) the issuance by any of the Companys Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being
held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(B) any sale or
other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not
permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of
Hedging Obligations (which may, but need not be, under Credit Facilities) in the ordinary course of business and not for speculation;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be
subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers compensation claims, self-insurance obligations, bankers acceptances, performance and surety bonds in the ordinary course of business;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) (x) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which
such Restricted Subsidiary was acquired by the Company (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary of or was otherwise acquired by the Company) or (y) Indebtedness of the Company or any Restricted Subsidiary that is a Guarantor incurred to finance an acquisition; provided, however, that, in either case, after giving
effect to the transactions that result in the incurrence of such Indebtedness, on a pro forma basis, either (a) the Company would have been able to incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof or
(b) the Companys Fixed Charge Coverage Ratio would not be less than immediately prior to such transactions;
(13) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price, earn out or similar obligations, in each case incurred or assumed in connection with the disposition of any assets or property or Capital Stock of a Restricted Subsidiary;
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(14) Indebtedness of the Company or any Restricted Subsidiary to
the extent the net proceeds of such Indebtedness are deposited and used to defease, covenant defease or discharge the Notes pursuant to Article 8 or Article 11 hereto or the 2022 Senior Notes in the corresponding provisions of the 2022 Senior Notes
Indenture; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness (which may, but need not, be pursuant to Credit Facilities) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed the greater of (i) $60.0 million and (ii) 4.0% of Consolidated Tangible Assets.
The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a first or junior
Lien basis.
For purposes of determining compliance with this Section 4.09, in the event that an item of proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) above or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company shall be permitted in its
sole discretion to divide, re-divide, classify or reclassify such Indebtedness, or later divide, re-divide, classify or reclassify such item of Indebtedness, in any manner that complies with this covenant. Indebtedness under Credit Facilities
outstanding on the Issue Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. Indebtedness permitted by this covenant need not be permitted
solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness. The accrual of interest, the accretion or
amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and
the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
or preferred stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued to the extent included in the definition
of Fixed Charges. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such
Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in
effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness
being refinanced. Notwithstanding any other provision of this Indenture, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be or be deemed to be exceeded as a
result of fluctuations in exchange rates or currency values.
54
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue
discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the
lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Section 4.10 |
Asset Sales. |
The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (provided that Fair Market Value shall be
determined on the date of the contractual agreement for such Asset Sale); and
(2) at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following shall be deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities, as shown on the Companys most recent consolidated balance sheet, of the Company or
any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to an agreement that releases the
Company or such Restricted Subsidiary from, or indemnifies the Company or such Restricted Subsidiary against, further liability;
(C) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are converted within 120 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(D) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this
Section 4.10.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay or prepay
Indebtedness and other Obligations under a secured Credit Facility;
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(2) to acquire (including by way of a purchase of assets or
stock, merger, consolidation or otherwise), or enter into a binding commitment to acquire within 180 days thereafter, all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such
acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make, or enter into a binding commitment to make within 60 days thereafter, a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in
a Permitted Business;
(5) to replace properties and/or assets that were the subject of the Asset Sale; or
(6) any combination of the foregoing.
Pending the final application of any Net Proceeds, the Company or a restricted Subsidiary may temporarily reduce revolving
credit borrowings (under Credit Facilities or otherwise) or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this
Section 4.10 will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $30.0 million, within five days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09
hereof (including the 2022 Senior Notes) to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%
of the principal amount of the Notes to be purchased plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount
of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the
provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this
Section 4.10 by virtue of such compliance.
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Section 4.11 |
Transactions with Affiliates. |
(a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an Affiliate Transaction) involving aggregate consideration in excess of $15.0 million, unless:
(1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or if, in the good faith judgment of the Companys Board of Directors, no
comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors of the Company set forth in an Officers Certificate certifying that such Affiliate Transaction complies with clause
(1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions
of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, trustee or director
indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of
the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable compensation or fees (including reimbursement of expenses) to directors or officers
of the Company and its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than
Disqualified Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments that do not
violate Section 4.07 hereof;
(7) Permitted Investments that are permitted by this Indenture;
(8) provision of corporate-level administrative, marketing, tax, accounting, budgeting, treasury, finance,
employee benefits, legal, risk management and other similar services for the benefit of Unrestricted Subsidiaries of the Company on substantially the same terms provided to Restricted Subsidiaries of the Company;
(9) payment of consolidated taxes on behalf of Restricted Subsidiaries and Unrestricted Subsidiaries;
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(10) (a) purchases, sales or other transfers of pulp, fiber,
chemicals and other consumables between or among the Company or any Restricted Subsidiary and any Unrestricted Subsidiary at market prices pursuant to arrangements approved by the Companys Board of Directors as being fair, from a financial
point of view, to the Company or the applicable Restricted Subsidiary, as the case may be; (b) purchases, sales or other transfers of spare parts or mill consumables between any Restricted Subsidiary and any Unrestricted Subsidiary at book
value; (c) the provision of logistics, planning, transportation and fiber procurement services between and/or among any Restricted Subsidiary and Unrestricted Subsidiary at cost; and (d) other transactions with customers, clients,
suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, that are fair to the Company or the Restricted Subsidiary, as the case may be, in
the reasonable determination of the Companys Board of Directors;
(11) payment of sales agency,
administration, management and other fees, payment of interest, principal, dividends or other distributions, in case from an Unrestricted Subsidiary to the Company or a Restricted Subsidiary to the Company; and
(12) loans or advances to employees in the ordinary course of business not to exceed $5.0 million in the
aggregate at any one time outstanding.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur or assume any Lien of any kind on any asset now owned or hereafter acquired, except Permitted Liens, unless all payments due under this Indenture and the Notes are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no longer secured by a Lien.
Section 4.13 |
Business Activities. |
The Company will not, and will not permit any of
its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.
Section 4.14 |
Corporate Existence. |
Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and effect:
(1) its corporate
existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries;
provided, however, 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 Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.
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Section 4.15 |
Offer to Repurchase Upon Change of Control. |
(a) Upon the occurrence of
a Change of Control, the Company will make an offer (a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment date (the Change of Control Payment). Within 20 days following any Change of Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and 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 purchase price and the purchase date, which shall be no earlier than 30 days and no 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 Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled Option of Holder to Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business
on the third 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 facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and
(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, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with
the provisions of Sections 3.09 or 4.15 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.15 by virtue of
such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control
Offer;
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(2) prior to 12 noon New York City time, deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers
Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
The
Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this
Section 4.15, the Company will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements
set forth in this Section 4.15 and Section 3.09 hereof and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07(c) hereof,
unless and until there is a default in payment of the applicable redemption price.
(d) Notwithstanding anything to the
contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change
of Control Offer is made. The closing date of any such Change of Control Offer made in advance of a Change of Control may be changed to conform to the actual closing date of the Change of Control, provided that such closing date is not
earlier than 30 days nor later than 60 days from the date the Change of Control Offer notice is mailed as described in the first paragraph of this section.
(e) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw
such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company as described in Section 4.15(c) above, purchases all of the Notes validly tendered and not withdrawn by such
Holders, the Company or such third party shall have the right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that
remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
Section 4.16 |
Payments for Consent. |
The Company will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.
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Section 4.17 |
Limitation on Issuances of Guarantees of Indebtedness. |
The Company will
not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee any other Indebtedness of the Company (except Permitted Liens) unless such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to
this Indenture providing for the Guarantee of the payment of the Notes by such Restricted Subsidiary, which Guarantee will be senior to or pari passu with such Restricted Subsidiarys Guarantee of such other Indebtedness.
Section 4.18 |
Note Guarantees. |
If the Company or any of its Restricted Subsidiaries
acquires or creates a Domestic Subsidiary after the Issue Date, then the Company will cause that newly acquired or created Domestic Subsidiary (other than a Domestic Subsidiary the sole business of which is the direct or indirect ownership of one or
more Foreign Subsidiaries) to become a Guarantor and execute a Note Guarantee pursuant to a supplemental indenture in the form and substance of Exhibit F attached hereto and deliver an Opinion of Counsel and Officers Certificate, reasonably
satisfactory to the Trustee, to the Trustee within 10 Business Days of the date on which it was acquired or created to the effect that such supplemental indenture has been duly authorized, executed and delivered by that Domestic Subsidiary and
constitutes a valid and binding agreement of that Domestic Subsidiary, enforceable in accordance with its terms (subject to customary exceptions); provided that any Domestic Subsidiary that does not constitute a Significant Subsidiary need
not become a Guarantor until a date not later than 10 Business Days after delivery of the Companys financial statements for its most recently completed fiscal quarter in respect of which such Domestic Subsidiary has become a Significant
Subsidiary based on the financial statements of the Company and such Domestic Subsidiary as of and for the Companys most recently completed fiscal year. The Company may designate any Restricted Subsidiary as a Guarantor at any time. The form
of such Note Guarantee is attached as Exhibit E hereto.
Section 4.19 |
Designation of Restricted and Unrestricted Subsidiaries. |
The Board of
Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value
of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.07 hereof and/or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time
and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a
Default.
Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the
Trustee by filing with the Trustee within 45 days after the end of the fiscal quarter of the Company in which such designation was made a certified copy of a resolution of the Board of Directors giving effect to such designation and an
Officers Certificate certifying that such designation complied with the preceding conditions and did not violate Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements of the definition of an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if
such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only
be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or
Event of Default would be in existence following such designation.
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Section 4.20 |
Change in Covenants When Notes Rated Investment Grade |
If on any date
following the Issue Date:
(a) the Notes are rated Baa3 or better by Moodys and BBB- or better by S&P (or, if
either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other nationally recognized statistical rating organization registered under
Section 15E of the Exchange Act selected by the Company as a replacement agency); and
(b) no Default or Event of
Default shall have occurred and be continuing,
then, beginning on that day and subject to the provisions of this Section 4.20, the
provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.17, 4.19 and 5.01(5) will be suspended (the Suspended Covenants).
During any period that the Suspended Covenants have been suspended, the Companys Board of Directors may not designate
any of its Subsidiaries as Unrestricted Subsidiaries pursuant Section 4.19 hereof or the definition of Unrestricted Subsidiary.
Notwithstanding the foregoing, if on any subsequent date (the Reinstatement Date), the Notes cease to
maintain ratings of at least Baa3 and BBB- from Moodys and S&P, respectively, the Suspended Covenants will be reinstituted as of and from the date of such rating decline, provided however that no Default, Event of Default or breach
of any kind shall be deemed to exist under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of the Company or its Subsidiaries shall bear any liability for, any actions taken or events occurring
during the period of time that the Suspended Covenants were suspended, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. Calculations under the
reinstated Section 4.07 will be made as if Section 4.07 had been in effect since the Issue Date.
The Company
shall deliver an Officers Certificate to the Trustee, specifying (i) if the Suspended Covenants will be suspended and the date thereof, (ii) if a Reinstatement Date has occurred and (iii) the dates of the commencement or ending
of any period of Suspended Covenants. The Trustee shall not have any duty to monitor whether or not a Suspended Covenant event or a Reinstatement Date has occurred or if a Suspended Covenant period has commenced or ended, nor any duty to notify the
Holders of the Notes of any of the foregoing.
ARTICLE 5
SUCCESSORS
Section 5.01 |
Merger, Consolidation, or Sale of Assets. |
The Company shall not,
directly or indirectly: (i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
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(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia, or the laws of Canada or any
province or territory thereof;
(2) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant
to a supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such
transaction, no Default or Event of Default exists;
(4) the Company shall have delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(5) the Company or the Person formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (ii) have had
a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period.
In addition, the Company will not, directly or indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person.
This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another
jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or
other disposition of assets between or among the Company and its Restricted Subsidiaries.
Section 5.02 |
Successor Corporation Substituted. |
Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof,
the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the Company shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved
from the obligation to pay the principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes except in the case of a sale of all of the Companys assets in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 |
Events of Default. |
Each of the following is an Event of
Default:
(1) default for 30 days in the payment when due of interest, or Additional Interest, if
any, on the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on the Notes;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.10, 4.15 or 5.01 hereof;
(4) failure by the
Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other
agreements in this Indenture;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of such default (a Payment Default); or
(B) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $35.0 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or
courts of competent jurisdiction aggregating in excess of $35.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;
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(7) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(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, or
(D) makes a general assignment for the benefit of its creditors;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; and
(9) except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee.
Section 6.02 |
Acceleration. |
In the case of an Event of Default specified in clause
(7) or (8) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the
Notes shall become due and payable immediately.
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The Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration and its consequences, if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium or Additional Interest, if any, that has become due solely because of the acceleration) have been cured or waived.
Section 6.03 |
Other Remedies. |
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest or Additional Interest, if any, 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 of a Note 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. All
remedies are cumulative to the extent permitted by law.
Section 6.04 |
Waiver of Past Defaults. |
Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium on, if any, or interest or Additional Interest, if any, on the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. 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; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 |
Control by Majority. |
Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06 |
Limitation on Suits. |
A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) such Holder gives to the Trustee written notice that an Event of
Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and
provide to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
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(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period,
Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07 |
Rights of Holders of Notes to Receive Payment. |
Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium on, if any, or interest or Additional Interest, if any, on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 |
Collection Suit by Trustee. |
If an Event of Default specified in
Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium on, if any, and
interest and Additional Interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount 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 6.09 |
Trustee May File Proofs of Claim. |
The Trustee is authorized to 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 the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims 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. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. 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 of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money and property in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and interest and Additional Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest and
Additional Interest, if any, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.
Section 6.11 |
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 a 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 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 |
Duties of Trustee. |
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(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. However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated herein).
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(c) The Trustee may not be relieved from liabilities 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 will not be
liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will 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 Section 6.05 hereof.
(d) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The
Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 |
Rights of Trustee. |
(a) The Trustee may conclusively rely upon any
document 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.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate and an Opinion of Counsel.
The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request
or direction.
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(g) The Trustee shall not be required to give any note, bond or surety in respect
of the trusts and powers under this Indenture.
(h) The Trustee may request that the Company deliver an Officers
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an
Officers Certificate, including any person specified as so authorized in such certificate previously delivered and not superseded.
(i) In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(j) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which
is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
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 otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 |
Trustees Disclaimer. |
The Trustee will not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Companys use of the proceeds from the Notes or any money paid to the Company or upon the Companys direction under
any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 |
Notice of Defaults. |
If a Default or Event of Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium on, if any, or interest or Additional Interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests
of the Holders.
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Section 7.06 |
Reports by Trustee to Holders of the Notes. |
(a) Within 60 days after
each May 15 beginning with the May 15 following the Issue Date, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA
§313(a) (but if no event described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA §313(b)(2). The Trustee will also transmit by
mail all reports as required by TIA §313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes will be mailed by the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which the Notes are listed in accordance with TIA §313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07 |
Compensation and Indemnity. |
(a) The Company will pay to the Trustee
from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustees compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the
Trustees agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee and its officers,
directors, employees and agents against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of
enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in
the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be
unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this Section 7.07 will survive
the satisfaction and discharge of this Indenture.
(d) To secure the Companys and the Guarantors payment
obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium on, if any, or interest or Additional Interest,
if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
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(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA §313(b)(2) to the extent applicable.
Section 7.08 |
Replacement of Trustee. |
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee will become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company.
The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
(d) 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 at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with
Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its
succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Companys obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
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Section 7.09 |
Successor Trustee by Merger, etc. |
If the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 |
Eligibility; Disqualification. |
There will at all times be a Trustee
hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and (5). The Trustee
is subject to TIA §310(b).
Section 7.11 |
Preferential Collection of Claims Against Company. |
The Trustee is
subject to TIA §311(a), excluding any creditor relationship listed in TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
Section 8.01 |
Option to Effect Legal Defeasance or Covenant Defeasance. |
The Company
may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.02 |
Legal Defeasance and Discharge. |
Upon the Companys exercise under
Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from
their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the
Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be outstanding only for the purposes
of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest
or premium or Additional Interest, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Companys obligations with respect to such Notes under Article 2 and Section 4.02 hereof;
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(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Companys and the Guarantors obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding
the prior exercise of its option under Section 8.03 hereof.
Section 8.03 |
Covenant Defeasance. |
Upon the Companys exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations
under the covenants contained in Sections 4.03, 4.04, 4.07 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17., 4.18 and 4.19 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes, and the Guarantors shall be
deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, Covenant Defeasance), and the Notes
will 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 will continue to be deemed
outstanding for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the
Company and the Restricted Subsidiaries may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except
as specified above, the remainder of this Indenture and such Notes will be unaffected thereby. In addition, upon the Companys exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through Section 6.01(6), Section 6.01(7) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary), Section 6.01(8) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary)
and Section 6.01(9) hereof will not constitute Events of Default.
Section 8.04 |
Conditions to Legal or Covenant Defeasance. |
In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company
must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, and interest and Additional Interest, if any, on, the outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an
Opinion of Counsel, reasonably acceptable to the Trustee, confirming that:
(A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling; or
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(B) since the Issue Date, there has been a change in the
applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal 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 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel, reasonably acceptable to the Trustee, confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject to federal 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 Default or Event of Default shall have occurred and be continuing on the date of such deposit (other
than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(5) such Legal Defeasance or
Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the
Company or any of its Restricted Subsidiaries is bound;
(6) the Company must deliver to the Trustee an
Officers Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors
of the Company or others; and
(7) the Company must deliver to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 |
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. |
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the outstanding Notes will 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 (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes
of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such money need not be segregated from other funds except to the extent required by law.
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The Company will pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal 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.
Notwithstanding anything in this Article 8 to the contrary,
the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 |
Repayment to Company. |
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest or Additional Interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or
interest or Additional Interest, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 |
Reinstatement. |
If the Trustee or Paying Agent is unable to apply any
U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Companys and the Guarantors obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium,
if any, or interest or Additional Interest, if any, on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 |
Without Consent of Holders of Notes. |
Notwithstanding Section 9.02
hereof, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes or the Note Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency, as evidenced by an Officers Certificate;
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(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes, in order to comply with any Applicable Procedures, or otherwise alter the provisions of Article 2 hereof in a manner that does not materially adversely affect any Holder;
(3) to provide for the assumption of the Companys or a Guarantors obligations to the Holders of the
Notes and Note Guarantees by a successor to the Company or such Guarantor pursuant to Article 5 or Article 10 hereof;
(4) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that
does not, in the good faith determination of the Board of Directors of the Company, adversely affect the legal rights hereunder of any Holder in any material respect;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture
under the TIA;
(6) to conform the text of this Indenture or the Notes to any provision of the
Description of Notes section of the Companys Offering Memorandum dated November 18, 2014, relating to the offering of the Notes, to the extent that such provision in that Description of Notes was intended to be a
verbatim recitation of a provision of this Indenture, the Note Guarantees or the Notes, as evidenced in an Officers Certificate;
(7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this
Indenture as of the Issue Date; or
(8) to allow any Restricted Subsidiary to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in
the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to
enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 |
With Consent of Holders of Notes. |
Except as provided below in this
Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and the Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest or
Additional Interest, if any, on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Notes or the Note Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with the purchase
of, or tender offer or exchange offer for, the Notes). Section 2.08 hereof shall determine which Notes are considered to be outstanding for purposes of this Section 9.02.
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Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the
Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture.
It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.
After an
amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of
the Notes then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture or the Notes or the Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Notes (except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal of, or premium, if any, or interest or
Additional Interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of, or interest or premium or Additional Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.10
and 4.15 hereof);
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(8) release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or
(9) make any
change in the preceding amendment and waiver provisions.
Section 9.03 |
Compliance with Trust Indenture Act. |
Every amendment or supplement to
this Indenture or the Notes will be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
Section 9.04 |
Revocation and Effect of Consents. |
Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if
notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 |
Notation on or Exchange of Notes. |
The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.
Section 9.06 |
Trustee to Sign Amendments, etc. |
The Trustee will sign any amended or
supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 12.04 hereof, an Officers Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and constitutes the legally
valid, binding and enforceable obligation of the Company and (if applicable) the Guarantors, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles including limitations and other restrictions on a partys rights to specific performance and indemnification.
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ARTICLE 10
NOTE GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes will
be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that
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 any performance so guaranteed for whatever reason, the Guarantors will
be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Note Guarantee will not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees
that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Note Guarantee.
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Section 10.02 |
Limitation on Guarantor Liability. |
Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that
the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect
to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 |
Execution and Delivery of Note Guarantee. |
To evidence its Note
Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose
signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the Issue Date, if required by Section 4.20 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.20 hereof and this Article 10, to
the extent applicable.
Section 10.04 |
Guarantors May Consolidate, etc., on Certain Terms. |
Except as otherwise
provided in Section 10.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other
than the Company or another Guarantor, unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(A) subject to Section 10.05 hereof, the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee on the terms set forth herein or therein, pursuant to a supplemental
indenture in the form and substance set forth in Exhibit F hereto; or
81
(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture, including without limitation, Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and in the form and substance set forth in Exhibit F hereto, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the
Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and
benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b) above, nothing contained in this
Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after giving effect
to such transaction) the Company or a Restricted Subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the Capital Stock of such Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers
Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof, the Trustee will execute any
documents reasonably requested by the Company, at the Companys expense, in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.
(b) Upon designation by the Company of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this
Indenture in accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain
liable for the full amount of principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.
82
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 |
Satisfaction and Discharge. |
This Indenture will be discharged and will
cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for cancellation (a) have become due and payable ,
(b) will become due and payable at their Stated Maturity within one year or (c) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company;
(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient (as determined by the Company),
without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Interest, if any, and accrued interest to the Stated
Maturity or redemption date;
(3) no Default or Event of Default has occurred and is continuing on the date
of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which
the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(4) the Company
or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture;
(5) the
Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and
(6) the Company has delivered an Officers Certificate and an Opinion of Counsel to the Trustee stating
that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 of
this Indenture, that, by their terms, survive the satisfaction and discharge of this Indenture.
83
Section 11.02 |
Application of Trust Money. |
Subject to the provisions of
Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest and Additional Interest, if any, for whose payment such
money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01
hereof 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 Companys and any Guarantors obligations under
this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium on, if any, or interest or
Additional Interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 |
Trust Indenture Act Controls. |
If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties will control.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the
others address:
If to the Company and/or any Guarantor:
Mercer International Inc.
14900 Interurban Avenue South, Suite 282
Seattle, Washington 98168
Attention: Chief Financial Officer
Facsimile No.: (604) 683-3205
with copies to:
Mercer International Inc.
Suite 1120
700 West Pender Street
Vancouver, British Columbia
Canada V6C 1G8
84
Attention: Chief Financial Officer
Facsimile No.: (604) 684-1094
and
Sangra, Moller
Barristers & Solicitors
1000 Cathedral Place
925 West Georgia Street
Vancouver, British Columbia
Canada V6C 3L2
Attention: Harjit Sangra
Facsimile No.: (604) 669-8803
If to the Trustee:
Wells Fargo Bank, National Association
333 S. Grand Avenue, 5th Floor Suite 5A
Los Angeles, CA 90071
MAC E2064-05A
Attention: Corporate, Municipal & Escrow Services
Facsimile No.: (213) 253-7598
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or
communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or
communication will also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
Section 12.03 |
Communication by Holders of Notes with Other Holders of Notes. |
Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §312(c).
85
Section 12.04 |
Certificate and Opinion as to Conditions Precedent. |
Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers Certificate in form and substance reasonably satisfactory to the Trustee (which must
include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 |
Statements Required in Certificate or Opinion. |
Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) must comply with the provisions of TIA §314(e) and must 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, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
satisfied.
Section 12.06 |
Rules by Trustee and Agents. |
The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 |
No Personal Liability of Directors, Officers, Employees and Stockholders. |
No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any 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 issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 12.08 |
Governing Law. |
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND EACH NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
86
Section 12.09 |
Waiver of Jury Trial. |
EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.10 |
Force Majeure. |
In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of
war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 12.11 |
USA Patriot Act. |
The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or
legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may reasonably require in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.
Section 12.12 |
No Adverse Interpretation of Other Agreements. |
This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.13 |
Successors. |
All agreements of the Company in this Indenture and the
Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05 hereof.
Section 12.14 |
Severability. |
In case any provision in this Indenture or in the Notes
is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.15 |
Counterpart Originals. |
The parties may sign any number of copies of
this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
87
Section 12.16 |
Table of Contents, Headings, etc. |
The Table of Contents,
Cross-Reference Table 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 of this Indenture and will in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
88
SIGNATURES
Dated as of November 26, 2014
|
|
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MERCER INTERNATIONAL INC. |
|
|
By: |
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/s/ David M. Gandossi |
Name: |
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David M. Gandossi |
Title: |
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Secretary and Chief Financial Officer |
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WELLS FARGO BANK, National Association |
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As Trustee, |
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By: |
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/s/ Maddy Hall |
Name: |
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Maddy Hall |
Title: |
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Vice President |
EXHIBIT A
[Face of Note]
CUSIP/CINS
7.000% Senior Notes due 2019
MERCER INTERNATIONAL INC.
promises to pay to [ ] or
registered assigns,
the principal sum of
DOLLARS on
December 1, 2019.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated:
,
|
|
|
MERCER INTERNATIONAL INC. |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
|
This is one of the Notes referred to in the within-mentioned Indenture: |
|
Wells Fargo Bank, National Association, as Trustee |
|
|
By: |
|
|
|
|
Authorized Signatory |
A-1
EXHIBIT A
[Back of Note]
7.000%
Senior Notes due 2019
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
(1) INTEREST. Mercer International Inc., a Washington
corporation (the Company), promises to pay interest on the principal amount of this Note at 7.000% per annum from November 26, 2014 until maturity and shall pay the Additional Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below. The Company will pay interest and Additional Interest, if any, semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an Interest Payment Date). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be June 1, 2015. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The
Company will pay interest on the Notes (except defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on the May 15 or November 15 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest and Additional Interest, if any, at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Additional
Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium
on, if any, and interest and Additional Interest, if any, on all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND
REGISTRAR. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
(4)
INDENTURE. The Company issued the Notes under an Indenture dated as of November 26, 2014 (the Indenture) between the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note is
inconsistent with or conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal
amount of Notes that may be issued thereunder.
A-2
EXHIBIT A
(5) OPTIONAL REDEMPTION.
|
(a) |
Except as set forth in subparagraphs (b) and (c) of this Paragraph 5 and subparagraph (a) of Paragraph 7, the Company will not have
the option to redeem the Notes prior to December 1, 2016. On or after December 1, 2016, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest (including Additional Interest, if any) on the Notes redeemed to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: |
|
|
|
|
|
Year |
|
Percentage |
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2016 |
|
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103.500 |
% |
2017 |
|
|
101.750 |
% |
2018 and thereafter |
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|
100.000 |
% |
Unless the Company defaults in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
|
(b) |
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to December 1, 2016, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of a sale of Equity Interests (other than Disqualified Stock) of the Company at a redemption price equal to 107.000%
of the aggregate principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date; provided that at least 65% in aggregate principal amount of the Notes issued under the Indenture (excluding
Notes held by the Company and its Subsidiaries but including any Additional Notes issued under the Indenture) remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the
closing of such sale of Equity Interests. |
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(c) |
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to December 1, 2016, the Company may on any one
or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to (but not including) the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
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A-3
EXHIBIT A
(6) MANDATORY REDEMPTION. The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE
AT THE OPTION OF HOLDERS.
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(a) |
If there is a Change of Control, as and to the extent required by Section 4.15 of the Indenture, the Company will be required to make an offer
(a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date
(the Change of Control Payment). Within 20 days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. A
Change of Control Offer may be made in advance of a Change in Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. The
closing date of any such Change of Control Offer made in advance of a Change of Control may be changed to conform to the actual closing date of the Change of Control, provided that such closing date is not earlier than 30 days nor later than
60 days from the date the Change of Control Offer notice is mailed. If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or
any third party making a Change of Control Offer in lieu of the Company as described in Section 4.15(c) of the Indenture, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party shall have
the right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in
cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption. |
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(b) |
If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within five days of each date on which the aggregate amount
of Excess Proceeds exceeds $30.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of sales of assets (an Asset Sale Offer) pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional
Notes) and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if
any, thereon to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase attached to the Notes. |
A-4
EXHIBIT A
(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 whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess
thereof, unless all of the Notes held by a Holder are to be redeemed.
Any such redemption may, at the
Companys discretion, be subject to one or more conditions precedent, including any related sale of Equity Interests (other than Disqualified Stock) or a Change of Control. In addition, if such redemption is subject to the satisfaction of one
or more conditions precedent, the related notice shall describe each such condition, and if applicable, shall state that, in the Companys discretion, the date of redemption may be delayed until such time as any or all such conditions shall be
satisfied or waived (provided that in no event shall such redemption date be delayed to a date later than 60 days after the date on which such notice was mailed), or such redemption may not occur and such notice may be rescinded in the event
that any or all such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date as so delayed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The
Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange
or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.
(11) AMENDMENT,
SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the
Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the
Indenture or the Notes or the Note Guarantees may be amended or supplemented: (i) to cure any ambiguity, defect or inconsistency, as evidenced by an Officers Certificate; (ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes, or in order to comply with any Applicable Procedures, or otherwise alter the provisions of Article 2 of the Indenture in a manner that does not materially adversely affect any Holder; (iii) to provide for the
assumption of the Companys or a Guarantors obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation; (iv) to make any change that would provide any additional rights or benefits to the Holders of
the Notes or that does not, in the good faith determination of the Board of Directors of the Company, adversely affect the legal rights under the Indenture of any Holder in any material respect; (v) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA; (vi) to conform the text of the Indenture or the Notes to any provision of the Description of Notes section of the Companys Offering Memorandum
dated November 18, 2014 relating to the initial offering of the Notes, to the extent that such provision in that Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or
the Notes, as evidenced in an Officers Certificate; (vii) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture; or (viii) to allow any Restricted Subsidiary to execute a
supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes.
A-5
EXHIBIT A
(12) DEFAULTS AND REMEDIES. Events of
Default include: (i) default for 30 days in the payment when due of interest or Additional Interest, if any, on the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on the Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer to purchase) or otherwise, (iii) failure by the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or 5.01 of the Indenture;
(iv) failure by the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then
outstanding voting as a single class to comply with any of the other agreements in the Indenture or the Notes; (v) default under certain other agreements relating to Indebtedness of the Company or its Restricted Subsidiaries which default is
caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default, or results in the acceleration of such Indebtedness
prior to its express maturity; (vi) certain final judgments for the payment of money that remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; and (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor or any Person acting on its behalf denies or disaffirms its obligations under such Guarantors Note Guarantee. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in aggregate 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 of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, if any, or interest or Additional Interest, if any) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or Additional Interest, if any, or premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
A-6
EXHIBIT A
(13) 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 the Trustee.
(14) NO RECOURSE
AGAINST OTHERS. A director, trustee, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as such, will not have any liability for any obligations of the Company or
the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder 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.
(15)
AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= 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).
(17) ADDITIONAL RIGHTS OF HOLDERS
OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of November 26, 2014, among the Company and the other parties named
on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company and the
other parties thereto, relating to rights given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the Registration Rights Agreement).
(18) 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.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND EACH NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
A-7
EXHIBIT A
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made
to:
Mercer International Inc.
14900 Interurban Avenue South, Suite 282
Seattle, Washington 98168
Attention: Chief Financial Officer
with a copy to:
Mercer International Inc.
Suite 1120
700 West Pender Street
Vancouver, British Columbia
Canada V6C 1G8
Attention: Chief Financial Officer
A-8
EXHIBIT A
ASSIGNMENT FORM
Mercer International Inc. 7.000% Senior Notes due 2019
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) |
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-9
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
Mercer International Inc. 7.000% Senior Notes due 2019
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the appropriate box below:
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¬Section 4.10 |
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¬Section 4.15 |
If you want to elect 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:
$
Date:
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:
Signature Guarantee*:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-10
EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for
an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange |
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Amount of decrease in Principal Amount of
this Global Note |
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Amount of increase in Principal Amount of
this Global Note |
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Principal Amount
of this Global Note following such
decrease (or increase) |
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Signature of authorized officer of Trustee
or Custodian |
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* |
This schedule should be included only if the Note is issued in global form. |
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Company address block]
Wells Fargo Bank DAPS Reorg.
MAC N9303-121
608 2nd Avenue
South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email:
DAPSReorg@wellsfargo.com
Re: 7.000% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
, (the Transferor) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of
$ in such Note[s] or interests (the Transfer), to
(the Transferee), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ¨ Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the Securities Act),
and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
2. ¨ Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
B-1
EXHIBIT B
3. ¨ Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor
hereby further certifies that (check one):
(a) ¨ such
Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) ¨ such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) ¨ such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) ¨ such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. ¨ Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)
¨ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
B-2
EXHIBIT B
(b) ¨ Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) ¨ Check if Transfer is
Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
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[Insert Name of Transferor] |
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By: |
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Name: |
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Title: |
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Dated:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
B-3
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
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1. |
The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
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(a) |
¨ a beneficial interest in the: |
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(i) |
¨ 144A Global Note (CUSIP
), or |
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(ii) |
¨ Regulation S Global Note (CUSIP
), or |
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(iii) |
¨ IAI Global Note (CUSIP
); or |
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(b) |
¨ a Restricted Definitive Note. |
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2. |
After the Transfer the Transferee will hold: |
[CHECK ONE]
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(a) |
¨ a beneficial interest in the: |
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(i) |
¨ 144A Global Note (CUSIP
), or |
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(ii) |
¨ Regulation S Global Note (CUSIP
), or |
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(iii) |
¨ IAI Global Note (CUSIP
); or |
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(iv) |
¨ Unrestricted Global Note (CUSIP
); or |
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(b) |
¨ a Restricted Definitive Note; or |
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(c) |
¨ an Unrestricted Definitive Note, |
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
[Company address block]
Wells Fargo Bank DAPS Reorg.
MAC N9303-121
608 2nd Avenue
South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
Re: 7.000% Senior Notes due 2019
(CUSIP [ ])
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
, (the Owner) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of
$ in such Note[s] or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)
¨ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the Securities Act),
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is
being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
C-1
EXHIBIT C
(c) ¨ Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owners Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
(d)
¨ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes
(a) ¨
Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an
equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) ¨ Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, ¨ IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for
the Owners own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
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[Insert Name of Transferor] |
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By: |
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C-2
EXHIBIT C
Dated:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
[Company address block]
Wells Fargo Bank DAPS Reorg.
MAC N9303-121
608 2nd Avenue
South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
Re: 7.000% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of
$ aggregate principal amount of:
|
(a) |
¨ a beneficial interest in a Global Note, or |
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the Securities Act).
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold 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 the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a qualified institutional
buyer (as defined therein), (C) 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 and to the Company a signed
letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
D-1
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, 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.
4. 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 are each able to bear the economic risk of our or its investment.
5. We are
acquiring the Notes or beneficial interest therein purchased by us for our own 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.
You and the Company 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 proceedings or official inquiry with respect to the matters covered hereby.
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[Insert Name of Accredited Investor] |
Dated:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of November 26, 2014 (the Indenture) between Mercer International Inc. (the
Company) and Wells Fargo Bank, National Association, as trustee (the Trustee), (a) the due and punctual payment of the principal of, premium on, if any, and interest and Additional Interest, if any, on the
Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, 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 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 of Notes and to the Trustee pursuant to the Note Guarantee and
the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
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[NAME OF GUARANTOR(S)] |
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By: |
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Name: |
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Title: |
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E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental
Indenture), dated as of , 201 , among
(the Guaranteeing Subsidiary), a subsidiary of
(or its permitted successor), a
corporation (the Company), the Company, the other Guarantors (as defined in the Indenture referred to
herein) and , as trustee under the Indenture referred to below (the
Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the Indenture),
dated as of November 26, 2014, providing for the issuance of 7.000% Senior Notes due 2019 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Note
Guarantee), which constitutes a valid, legally binding obligation of the Company and the Guaranteeing Subsidiary, enforceable against them in accordance with its terms;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The
Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture
or this Supplemental 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. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
F-1
EXHIBIT F
6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
7. EFFECT OF
HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the
date first above written.
Dated:
, 20
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[GUARANTEEING SUBSIDIARY] |
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By: |
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Name: |
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Title: |
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MERCER INTERNATIONAL INC. |
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By: |
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Name: |
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Title: |
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[EXISTING GUARANTORS] |
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By: |
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Name: |
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Title: |
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[TRUSTEE], |
as Trustee |
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By: |
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Name: |
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Title: |
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F-2
Exhibit 4.4
EXECUTION VERSION
MERCER INTERNATIONAL INC.
7.750% SENIOR NOTES DUE 2022
INDENTURE
Dated as of November 26, 2014
Wells Fargo
Bank, National Association
Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture Act
Section |
|
Indenture Section |
310(a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
|
7.10 |
(b) |
|
7.10 |
(c) |
|
N.A. |
311(a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
N.A. |
312(a) |
|
2.05 |
(b) |
|
12.03 |
(c) |
|
12.03 |
313(a) |
|
7.06 |
(b)(1) |
|
N.A. |
(b)(2) |
|
7.06; 7.07 |
(c) |
|
7.06; 12.02 |
(d) |
|
7.06 |
314(a) |
|
4.03; 12.05 |
(b) |
|
N.A. |
(c)(1) |
|
N.A. |
(c)(2) |
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N.A. |
(c)(3) |
|
N.A. |
(d) |
|
N.A. |
(e) |
|
12.05 |
(f) |
|
N.A. |
315(a) |
|
N.A. |
(b) |
|
N.A. |
(c) |
|
N.A. |
(d) |
|
N.A. |
(e) |
|
N.A. |
316(a) (last sentence) |
|
N.A. |
(a)(1)(A) |
|
N.A. |
(a)(1)(B) |
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N.A. |
(a)(2) |
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N.A. |
(b) |
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N.A. |
(c) |
|
N.A. |
317(a)(1) |
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N.A. |
(a)(2) |
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N.A. |
(b) |
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N.A. |
318(a) |
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N.A. |
(b) |
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N.A. |
(c) |
|
12.01 |
N.A. means not applicable.
* |
This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
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Page |
ARTICLE 1 |
DEFINITIONS AND INCORPORATION |
BY REFERENCE |
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Section 1.01 |
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Definitions |
|
1 |
Section 1.02 |
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Other Definitions |
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22 |
Section 1.03 |
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Incorporation by Reference of Trust Indenture Act |
|
23 |
Section 1.04 |
|
Rules of Construction |
|
23 |
|
ARTICLE 2 |
THE NOTES |
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Section 2.01 |
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Form and Dating |
|
23 |
Section 2.02 |
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Execution and Authentication |
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24 |
Section 2.03 |
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Registrar and Paying Agent |
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24 |
Section 2.04 |
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Paying Agent to Hold Money in Trust |
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25 |
Section 2.05 |
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Holder Lists |
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25 |
Section 2.06 |
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Transfer and Exchange |
|
25 |
Section 2.07 |
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Replacement Notes |
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37 |
Section 2.08 |
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Outstanding Notes |
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37 |
Section 2.09 |
|
Treasury Notes |
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37 |
Section 2.10 |
|
Temporary Notes |
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38 |
Section 2.11 |
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Cancellation |
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38 |
Section 2.12 |
|
Defaulted Interest |
|
38 |
|
ARTICLE 3 |
REDEMPTION AND PREPAYMENT |
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Section 3.01 |
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Notices to Trustee |
|
38 |
Section 3.02 |
|
Selection of Notes to Be Redeemed or Purchased |
|
39 |
Section 3.03 |
|
Notice of Redemption |
|
39 |
Section 3.04 |
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Effect of Notice of Redemption |
|
40 |
Section 3.05 |
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Deposit of Redemption or Purchase Price |
|
40 |
Section 3.06 |
|
Notes Redeemed or Purchased in Part |
|
41 |
Section 3.07 |
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Optional Redemption |
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41 |
Section 3.08 |
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Mandatory Redemption; No Sinking Fund |
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41 |
Section 3.09 |
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Offer to Purchase by Application of Excess Proceeds |
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42 |
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ARTICLE 4 |
COVENANTS |
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Section 4.01 |
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Payment of Notes |
|
43 |
Section 4.02 |
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Maintenance of Office or Agency |
|
44 |
Section 4.03 |
|
Reports |
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44 |
Section 4.04 |
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Compliance Certificate |
|
45 |
Section 4.05 |
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Taxes |
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46 |
Section 4.06 |
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Stay, Extension and Usury Laws |
|
46 |
Section 4.07 |
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Restricted Payments |
|
46 |
Section 4.08 |
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Dividend and Other Payment Restrictions Affecting Subsidiaries |
|
50 |
Section 4.09 |
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Incurrence of Indebtedness and Issuance of Preferred Stock |
|
51 |
Section 4.10 |
|
Asset Sales |
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55 |
i
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Section 4.11 |
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Transactions with Affiliates |
|
57 |
Section 4.12 |
|
Liens |
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58 |
Section 4.13 |
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Business Activities |
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58 |
Section 4.14 |
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Corporate Existence |
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58 |
Section 4.15 |
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Offer to Repurchase Upon Change of Control |
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59 |
Section 4.16 |
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Payments for Consent |
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60 |
Section 4.17 |
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Limitation on Issuances of Guarantees of Indebtedness |
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61 |
Section 4.18 |
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Note Guarantees |
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61 |
Section 4.19 |
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Designation of Restricted and Unrestricted Subsidiaries |
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61 |
Section 4.20 |
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Change in Covenants When Notes Rated Investment Grade |
|
62 |
|
ARTICLE 5 |
SUCCESSORS |
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Section 5.01 |
|
Merger, Consolidation, or Sale of Assets |
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62 |
Section 5.02 |
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Successor Corporation Substituted |
|
63 |
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ARTICLE 6 |
DEFAULTS AND REMEDIES |
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Section 6.01 |
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Events of Default |
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64 |
Section 6.02 |
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Acceleration |
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65 |
Section 6.03 |
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Other Remedies |
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66 |
Section 6.04 |
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Waiver of Past Defaults |
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66 |
Section 6.05 |
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Control by Majority |
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66 |
Section 6.06 |
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Limitation on Suits |
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66 |
Section 6.07 |
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Rights of Holders of Notes to Receive Payment |
|
67 |
Section 6.08 |
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Collection Suit by Trustee |
|
67 |
Section 6.09 |
|
Trustee May File Proofs of Claim |
|
67 |
Section 6.10 |
|
Priorities |
|
68 |
Section 6.11 |
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Undertaking for Costs |
|
68 |
|
ARTICLE 7 |
TRUSTEE |
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Section 7.01 |
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Duties of Trustee |
|
68 |
Section 7.02 |
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Rights of Trustee |
|
69 |
Section 7.03 |
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Individual Rights of Trustee |
|
70 |
Section 7.04 |
|
Trustees Disclaimer |
|
70 |
Section 7.05 |
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Notice of Defaults |
|
70 |
Section 7.06 |
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Reports by Trustee to Holders of the Notes |
|
71 |
Section 7.07 |
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Compensation and Indemnity |
|
71 |
Section 7.08 |
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Replacement of Trustee |
|
72 |
Section 7.09 |
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Successor Trustee by Merger, etc. |
|
73 |
Section 7.10 |
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Eligibility; Disqualification |
|
73 |
Section 7.11 |
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Preferential Collection of Claims Against Company |
|
73 |
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ARTICLE 8 |
LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
|
|
|
Section 8.01 |
|
Option to Effect Legal Defeasance or Covenant Defeasance |
|
73 |
Section 8.02 |
|
Legal Defeasance and Discharge |
|
73 |
Section 8.03 |
|
Covenant Defeasance |
|
74 |
Section 8.04 |
|
Conditions to Legal or Covenant Defeasance |
|
74 |
ii
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|
Section 8.05 |
|
Deposited Money and Government Securities to be Held in Trust; Other |
|
|
|
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Miscellaneous Provisions |
|
75 |
Section 8.06 |
|
Repayment to Company |
|
76 |
Section 8.07 |
|
Reinstatement |
|
76 |
|
ARTICLE 9 |
AMENDMENT, SUPPLEMENT AND WAIVER |
|
|
|
Section 9.01 |
|
Without Consent of Holders of Notes |
|
76 |
Section 9.02 |
|
With Consent of Holders of Notes |
|
77 |
Section 9.03 |
|
Compliance with Trust Indenture Act |
|
79 |
Section 9.04 |
|
Revocation and Effect of Consents |
|
79 |
Section 9.05 |
|
Notation on or Exchange of Notes |
|
79 |
Section 9.06 |
|
Trustee to Sign Amendments, etc. |
|
79 |
|
ARTICLE 10 |
NOTE GUARANTEES |
|
|
|
Section 10.01 |
|
Guarantee |
|
80 |
Section 10.02 |
|
Limitation on Guarantor Liability |
|
81 |
Section 10.03 |
|
Execution and Delivery of Note Guarantee |
|
81 |
Section 10.04 |
|
Guarantors May Consolidate, etc., on Certain Terms |
|
81 |
Section 10.05 |
|
Releases |
|
82 |
|
ARTICLE 11 |
SATISFACTION AND DISCHARGE |
|
|
|
Section 11.01 |
|
Satisfaction and Discharge |
|
83 |
Section 11.02 |
|
Application of Trust Money |
|
84 |
|
ARTICLE 12 |
MISCELLANEOUS |
|
|
|
Section 12.01 |
|
Trust Indenture Act Controls |
|
84 |
Section 12.02 |
|
Notices |
|
84 |
Section 12.03 |
|
Communication by Holders of Notes with Other Holders of Notes |
|
85 |
Section 12.04 |
|
Certificate and Opinion as to Conditions Precedent |
|
86 |
Section 12.05 |
|
Statements Required in Certificate or Opinion |
|
86 |
Section 12.06 |
|
Rules by Trustee and Agents |
|
86 |
Section 12.07 |
|
No Personal Liability of Directors, Officers, Employees and Stockholders |
|
86 |
Section 12.08 |
|
Governing Law |
|
86 |
Section 12.09 |
|
Waiver of Jury Trial |
|
87 |
Section 12.10 |
|
Force Majeure |
|
87 |
Section 12.11 |
|
USA Patriot Act |
|
87 |
Section 12.12 |
|
No Adverse Interpretation of Other Agreements |
|
87 |
Section 12.13 |
|
Successors |
|
87 |
Section 12.14 |
|
Severability |
|
87 |
Section 12.15 |
|
Counterpart Originals |
|
87 |
Section 12.16 |
|
Table of Contents, Headings, etc. |
|
88 |
|
EXHIBITS |
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|
|
Exhibit A |
|
FORM OF NOTE |
|
|
Exhibit B |
|
FORM OF CERTIFICATE OF TRANSFER |
|
|
Exhibit C |
|
FORM OF CERTIFICATE OF EXCHANGE |
|
|
iii
|
|
|
Exhibit D |
|
FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
Exhibit E |
|
FORM OF NOTATION OF GUARANTEE |
Exhibit F |
|
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS |
iv
INDENTURE dated as of November 26, 2014 between Mercer International
Inc., a Washington corporation, and Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States of America, as trustee.
WHEREAS, the Company has duly authorized the creation of a series of its debt securities denominated as the 7.750%
Senior Notes due 2022 (the Notes);
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture, to establish the Notes as provided for in this Indenture, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, the Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined below) of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY
REFERENCE
Section 1.01 |
Definitions. |
144A Global Note means a Global Note
substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
2017 Senior
Notes means the Companys 9.5% Senior Notes due 2017.
2019 Senior Notes means the
Companys 7.000% Senior Notes due 2019.
2019 Senior Notes Indenture means the indenture dated the
Issue Date between the Company and the Trustee pursuant to which the 2019 Senior Notes are being issued.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Additional Interest has the meaning assigned to that term pursuant to the Registration Rights Agreement.
Additional Notes means Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
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Affiliate of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control, 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 beneficial ownership of more than 20%
(measured on a fully diluted basis) of the Voting Stock of a Person (except as reportable on Form 13-F or Form 13-G of the SEC) will be deemed to be control. For purposes of this definition, the terms controlling, controlled
by and under common control with have correlative meanings.
Agent means any
Registrar, co-registrar, Paying Agent or additional paying agent.
Applicable Premium means with
respect to any Note on any redemption date, the greater of:
(1) |
1.0% of the principal amount of such Note; or |
(a) the present value at such redemption date of (i) the redemption price of such Note at
December 1, 2017 (such redemption price being set forth in Section 3.07(c)) plus (ii) all required interest payments due on such Note through December 1, 2017 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
|
(b) |
the principal amount of such Note. |
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial interests in any
Global Note, and the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale,
lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 4.15 and/or Section 5.01 hereof and not by the
provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the
Companys Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, none of the
following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related
transactions that involves assets having a Fair Market Value of less than $15.0 million;
(2) a transfer of
assets between or among the Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;
(4)
the sale or lease of products (including electricity, power and chemicals generated as a by-product of or from, or utilizing the facilities of, any other Permitted Business), services, accounts receivable or current assets in the ordinary course of
business and any sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business;
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(5) the sale or other disposition of cash or Cash Equivalents;
(6) any waiver, release, settlement or surrender of intangible claims or rights in connection with the
loss or settlement of a bona fide lawsuit, release of contract, tort claims, disputes or other controversy;
(7) (i) leases or subleases or (ii) licenses or sublicenses of intellectual property or general
intangibles, in each case to third persons not interfering in any material respect with the business of the Company and its Restricted Subsidiaries;
(8) a Restricted Payment that does not violate the provisions of Section 4.07 hereof or a Permitted
Investment;
(9) the unwinding of or assignment of rights under any Hedging Obligations; and
(10) purchases, sales or other transfers of pulp, fiber, chemicals and other consumables between or among the
Company or any Restricted Subsidiary and any Unrestricted Subsidiary at market prices pursuant to arrangements approved by the Companys Board of Directors as being fair, from a financial point of view, to the Company or the applicable
Restricted Subsidiary, as the case may be; purchases, sales or other transfers of spare parts or mill consumables between any Restricted Subsidiary and any Unrestricted Subsidiary at book value; and other transactions with customers, clients,
suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, that are fair to the Company or the Restricted Subsidiary, as the case may be, in
the reasonable determination of the Companys Board of Directors.
Bankruptcy Law means Title 11,
U.S. Code or any similar federal or state law for the relief of debtors.
Beneficial Owner has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such
person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only
after the passage of time. The terms Beneficially Owns and Beneficially Owned have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly
authorized to act on behalf of such board;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members thereof; and
(4) with respect to any
other Person (including a business trust), the board of trustees or committee of such Person serving a similar function.
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Borrowing Base means, as of any date, an amount equal to:
(1) 85% of the face amount of all accounts receivable owned by the Company and its Restricted Subsidiaries as
of the end of the most recent fiscal month preceding such date, calculated on a consolidated basis and in accordance with GAAP; plus
(2) 65% of the book value of all inventory owned by the Company and its Restricted Subsidiaries as of the end
of the most recent fiscal month preceding such date, calculated on a consolidated basis and in accordance with GAAP.
Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Business Day means any day other than a Legal Holiday.
Capital Lease Obligation means, at the time any determination is to be made, the amount of the liability in
respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty; provided that no Deemed Capitalized Leases shall be considered Capital Lease Obligations.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity or trust, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including shares of beneficial interest;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or
limited) or membership interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
Cash Equivalents means:
(1) United States dollars, Canadian dollars, Euros or Renminbi;
(2) securities issued or directly and fully guaranteed or insured by the United States, Canadian, German or
United Kingdom government or any agency or instrumentality of the United States, Canadian, German or United Kingdom government (provided that the full faith and credit of the United States, Canada, Germany or the United Kingdom is pledged in
support of those securities) having maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any lender party to the Credit Agreements or with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of B or better;
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(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable from Moodys or S&P and, in each
case, maturing within six months after the date of acquisition; and
(6) money market or other investment
company funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any person (as that term is used in Section 13(d) of the
Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the consummation of any transaction (including, without limitation, any merger or consolidation), the
result of which is that any person (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; or
(4) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or
merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance).
Clearstream means Clearstream Banking, S.A.
Company means Mercer International Inc., and any and all successors thereto.
Consolidated EBITDA means, with respect to any specified Person for any period, the Consolidated Net Income
of such Person for such period plus, without duplication:
(1) an amount equal to any extraordinary
loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income, profits or capital of such Person and its Restricted Subsidiaries for
such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such
Fixed Charges were deducted in computing such Consolidated Net Income; plus
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(4) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; plus
(5) any expenses or charges related to any transaction
or series of transactions constituting an equity offering, Permitted Investment, recapitalization or incurrence of Indebtedness permitted to be incurred by this Indenture (whether or not successful), including such fees, expenses or charges related
to (i) the offering of these Notes and the 2019 Senior Notes, (ii) the tender offer of the 2017 Senior Notes (including, without limitation, premium and consent fees) and (iii) the Companys entry into the Credit Agreements;
plus
(6) the following expenses, losses or gains to the extent such amounts were included in the
computation of Consolidated Net Income:
(i) extraordinary, non-recurring or unusual losses or expenses,
including, without limitation, restructuring charges or reserves, including severance contracts and termination costs including future lease commitments, costs to close or consolidate facilities and costs to relocate employees during such period, as
determined in good faith by the Chief Financial Officer, Controller or Treasurer of the Company, in each case, without regard to any limitations of Item 10(e) of Regulation S-K;
(ii) foreign exchange gains or losses incurred with respect to receivables (net of the impact on payables) on
product sales; and
(iii) expenses related to equipment failures (including, without limitation, costs of
repair, equipment replacement or addition) where a good faith application for the recovery of such costs from the vendor or an insurer has been made, less any such recovery and the amount of any such claim to the extent it has been finally
determined to be uncollectible, the net amount not to exceed $10.0 million in the aggregate over any twelve-month period; minus
(7) non-cash items increasing such Consolidated Net Income for such period, other than (i) the accrual of
revenue in the ordinary course of business or (ii) the reversal of non-cash expenses not added back due to the exclusions in clause (4) of this definition of Consolidated EBITDA,
in each case, on a consolidated basis for such Person and its Restricted Subsidiaries and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income, profits or capital of, and the depreciation and
amortization and other non-cash expenses of, a Restricted Subsidiary of the Company will be added to Consolidated Net Income to compute Consolidated EBITDA of the Company only to the extent that a corresponding amount would be permitted at the date
of determination to be dividended or distributed, directly or indirectly, to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.
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Consolidated Net Income means, with respect to any specified
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:
(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by
the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;
(2) solely for purposes of determining the amount available for Restricted Payments pursuant to clause
(3)(a) of the second paragraph of Section 4.07(a) hereof, the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;
(3) the cumulative effect of a change in accounting principles will be excluded; and
(4) any goodwill impairment charges pursuant to Financial Accounting Standards Board Statement No. 142 or
any asset impairment charges pursuant to Financial Accounting Standards Board Statement No. 144 will be excluded.
Consolidated Tangible Assets means, as of any date of determination, the sum of the amounts that would
appear on a consolidated balance sheet of the Company and its consolidated Restricted Subsidiaries as the total assets of the Company and its Restricted Subsidiaries, excluding goodwill, patents, trade names, trademarks, copyrights, franchises,
experimental expense, organization expense and any other assets properly classified as intangible assets in accordance with GAAP, determined in accordance with GAAP.
continuing means, with respect to any Default or Event of Default, that such Default or Event of Default
has not been cured or waived.
Corporate Trust Office of the Trustee for administration
purposes will be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company. With respect to presentation of Notes or for registration of transfer or exchange,
625 Marquette Avenue, Minneapolis, MN 55402, Attention Bondholder Communications.
Credit Agreements
means (i) the Revolving Credit Facility Agreement dated August 19, 2009 among D&Z Holding GmbH, Zellstoff-und Papierfabrik Rosenthal GmbH, D&Z Beteiligungs GmbH and ZPR Logistik GmbH and Bayerische Hypo-und Vereinsbank AG,
as amended by the Extension, Amendment and Confirmation Letter dated October 4, 2012; (ii) the Universal Contract for Business Loans dated April 30, 2013 between Zellstoff-und Papierfabrik Rosenthal GmbH and Kreissparkasse Saale-Orla,
as supplemented by the Special Agreement to the Loan Agreement dated April 30, 2013 among Zellstoff-und Papierfabrik Rosenthal GmbH, D&Z Beteiligungs GmbH, D&Z Holding GmbH, Mercer International Inc. and Kreissparkasse Saale-Orla; and
(iii) the Second Amended and Restated Credit Agreement dated as of May 2, 2013 among Zellstoff Celgar Limited Partnership, as borrower, and the lenders from time to time parties thereto, as lenders, and Canadian Imperial Bank of Commerce,
as agent, as amended by the First Amending Agreement dated October 21, 2014.
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Credit Facilities means, one or more debt facilities
(including, without limitation, the Credit Agreements), indentures or commercial paper facilities, in each case, with banks or other institutional lenders, accredited investors or institutional investors providing for revolving credit loans, term
loans, term debt, debt securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, extended, increased, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in
part from time to time.
Custodian means the Trustee, as custodian with respect to the Notes in global
form, or any successor entity thereto.
Customary Recourse Exceptions means, with respect to any
Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud, misapplication of cash, environmental claims,
waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.
Deemed Capitalized Leases means obligations of the Company or any Restricted Subsidiary of the Company that
are classified as capital lease obligations under GAAP due to the application of ASC Topic 840 or any subsequent pronouncement having similar effect and, except for such regulation or pronouncement, such obligation would not constitute a
Capital Lease Obligation.
Default means any event that is, or with the passage of time or the giving
of notice or both would be, an Event of Default.
Definitive Note means a certificated Note registered
in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of
Interests in the Global Note attached thereto.
Depositary means, with respect to the Notes
issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant
to the applicable provision of this Indenture.
Disqualified Stock means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence,
any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof.
The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the Stated Maturity of, or pursuant to
any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
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Domestic Subsidiary means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the Company.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights Agreement.
Existing Indebtedness means the Indebtedness of the Company and its Restricted Subsidiaries (other than
Indebtedness under the Credit Agreements) in existence on the Issue Date, including Hedging Obligations, until such amounts are repaid.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated willing seller
in a transaction not involving distress or necessity of either party. In the case of a transaction not exceeding $20.0 million, Fair Market Value may be determined in good faith by the Chief Financial Officer, Controller or Treasurer of the Company,
and in the case of a transaction exceeding $20.0 million, Fair Market Value shall be determined in good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).
Fixed Charge Coverage Ratio means, with respect to any specified Person for any period, the ratio of the
Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases
or otherwise discharges any Indebtedness (other than ordinary working capital borrowings or revolving borrowings under Credit Facilities) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will
be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of
the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) such calculation may include
adjustments appropriate to reflect the amount of net cost savings, operating improvements or synergies projected by the Company in good faith to be realized within twelve months following the date of any operational changes, business realignment
projects or initiatives, restructurings or reorganizations which have been or are intended to be initiated (other than those operational changes, business realignment projects or initiatives, restructurings or reorganizations entered into in
connection with any pro forma event (as defined in clause (2) below)) (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized
during such period from such actions; provided that such net cost savings and operating improvements or synergies are reasonably identifiable and quantifiable; provided, further, that the aggregate amount of any such adjustments
made pursuant to this clause (1) shall not exceed 15% of Consolidated EBITDA for such period (determined after giving effect to such adjustments);
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(2) Investments, acquisitions, dispositions, mergers,
amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, that the specified Person or any of its Restricted Subsidiaries has made during the
four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a pro forma event) shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, or discontinued operations (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the specified Person or any of its Restricted
Subsidiaries since the beginning of such period shall have consummated any pro forma event that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma
effect thereto for such period as if such pro forma event had occurred at the beginning of the applicable four-quarter period;
(3) whenever pro forma effect is to be given to any pro forma event, the pro forma
calculations shall be made in good faith by the Chief Financial Officer, Controller or Treasurer of the specified Person. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of
the specified Person as set forth in an Officers Certificate, to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event within 12 months of the date the
applicable event is consummated. For the avoidance of doubt, adjustments to the computation of the Fixed Charge Coverage Ratio arising from any pro forma event and made in accordance with this clause (3) and clause (2) immediately
above shall not be subject to the 15% cap set forth in clause (1) of this definition;
(4) any Person
that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a
Restricted Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a
floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to
such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 6 months).
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Fixed Charges means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, original issue discount, non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market
valuation of Hedging Obligations in accordance with GAAP and excluding amortization and write-offs of debt issuance costs), the interest component of any deferred payment obligations, the interest component of all payments associated with Capital
Lease Obligations (but excluding any interest expense attributable to Deemed Capitalized Leases), commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, and net of the effect
of all payments made or received pursuant to Hedging Obligations in respect of interest rates (excluding, for the avoidance of doubt, amounts due upon settlement of any such Hedging Obligations); plus
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized
during such period; plus
(3) any interest on Indebtedness of another Person that is guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined
on a consolidated basis in accordance with GAAP.
Foreign Subsidiary means any Restricted Subsidiary
that is not a Domestic Subsidiary.
GAAP means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issue Date.
Global Note Legend means the legend set forth in Section 2.06(g)(2) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
Global Notes means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the Schedule of Exchanges of Interests in the Global Note attached thereto, issued in accordance with Sections 2.01 and 2.06 hereof.
Government Securities means direct obligations of, or obligations guaranteed by, the United States of
America, and the payment for which the United States pledges its full faith and credit.
Guarantee
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).
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Guarantor means each Subsidiary of the Company that executes a
Note Guarantee in accordance with the provisions of this Indenture, and its successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap
agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates (including, without limitation, foreign currency futures and options, currency swaps, currency forwards and related interest rate swaps and/or forwards) or commodity prices (including, without
limitation, commodity futures, swaps or options) or energy prices (including forwards and swaps).
Holder means a Person in whose name a Note is registered on the books of the Registrar.
IAI Global Note means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.
Indebtedness means, with respect to any specified Person,
any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, Notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof);
(3) in respect of bankers acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property or services due more
than six months after such property is acquired or such services are completed, except any balance that constitutes an accrual of expenses or trade payable; or
(6) representing any Hedging Obligations (the amount of any such Hedging Obligations to be equal at any time to
the termination value of the agreement or arrangement giving rise to such Hedging Obligations that would be payable by such Person at such time),
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP, but excluding Deemed Capitalized Leases. In addition, the term Indebtedness includes all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving
effect to the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result
of accounting for any embedded derivatives created by the terms of such Indebtedness.
12
Indenture means this Indenture, as amended or supplemented
from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global
Note through a Participant.
Initial Notes means the first $400.0 million aggregate principal amount of
Notes issued under this Indenture on the Issue Date.
Initial Purchasers means Credit Suisse Securities
(USA) LLC, Barclays Capital Inc., RBC Capital Markets, LLC, Macquarie Capital (USA) Inc. and Raymond James & Associates, Inc.
Institutional Accredited Investor means an institution that is an accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
Investments means, with respect to any Person, all direct or indirect investments by such Person in other
Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Companys Investments in such Restricted Subsidiary that were not sold
or disposed of in an amount determined as provided in the final paragraph of Section 4.07 hereof. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed
to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of
Section 4.07 hereof. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means November 26, 2014.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in the City of New York or
at a place of payment are authorized by law, regulation or executive order to remain closed. 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 on such payment for the intervening period.
Letter of Transmittal means the
letter of transmittal to be prepared by the Company and sent to all Holders for use in connection with the Exchange Offer.
13
Lien means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
Moodys means Moodys Investors Service, Inc.
Net Income means, with respect to any specified Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (loss), together with any related provision for taxes on such gain (loss), realized in connection
with:
(i) any Asset Sale (or transaction that would be an Asset Sale but for the exclusion in clause
(1) of the second paragraph of the definition thereof); or
(ii) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries;
(2) any extraordinary gain (loss), together with any related provision for taxes on such extraordinary gain
(loss);
(3) any foreign exchange gain (loss) on Indebtedness;
(4) any marked to market gain (loss) whether realized or accrued, without duplication, on Hedging Obligations;
(5) any non-cash charges resulting from the application of ASC 718 (formerly SFAS No. 123) and any
other non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance or repricing of stock, stock options or other equity based awards or any amendment, modification, substitution or change of any such
stock, stock options or other equity based awards;
(6) all deferred financing costs written off, and
premiums paid, in connection with any early extinguishment of Indebtedness;
(7) any purchase accounting
adjustments (including, without limitation, the impact of writing up inventory, deferred marketing and deferred financing costs or deferred revenue at fair value), amortizations, impairments, write-offs, or non-cash charges with respect to purchase
accounting with respect to any acquisition, disposition, merger, consolidation, amalgamation or similar transactions on or after the Issue Date; and
(8) the net income (loss) from any operations disposed of or discontinued after the Issue Date and any net
gains or losses on such disposition or discontinuance, on an after-tax basis.
14
Net Proceeds means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset
Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, after deducting any reserves in accordance with GAAP against any liabilities associated with the assets disposed of in such Asset
Sale and retained by the Company and/or a Restricted Subsidiary after such Asset Sale, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.
Non-Recourse Debt means Indebtedness as to which neither the Company nor any of its Restricted
Subsidiaries:
(1) provides credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness); or
(2) is directly or indirectly liable as a guarantor or otherwise,
except for Customary Recourse Exceptions.
Non-U.S. Person means a Person who is not a U.S. Person.
Note Guarantee means the Guarantee by each Guarantor of the Companys obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.
Notes has the meaning
assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.
Obligations means any principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
Officers Certificate means a certificate signed on behalf of the Company by two Officers of the
Company, one of whom must be the principal executive officer, the principal financial officer, the controller, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account
with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
15
Permitted Business means any business conducted by the Company
and its Restricted Subsidiaries on the Issue Date, including pulp (including softwood, hardwood, sulphate, sulphite, dissolving and other chemical pulps) manufacturing and sales business, production and generation and sales of electricity,
chemicals, chemical byproducts and other products generated as a by-product of or from, or utilizing the facilities of, any Permitted Business and any business reasonably related thereto, ancillary or complimentary to reasonable extensions thereof,
including, without limitation, the development and commercialization of processes, applications and uses for lignum-based products, materials and uses, transportation, logistics and wood and wood pellet harvesting, procurement, processing and/or
marketing and sales.
Permitted Investments means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of
such Investment:
(i) such Person becomes a Restricted Subsidiary of the Company; or
(ii) 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 of the Company;
(4)
any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company or out of the net proceeds of an issue or sale of Equity Interest of the Company (other than Disqualified Stock) so long as such acquisition occurs within 60 days thereafter;
(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or
customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (B) litigation, arbitration or other disputes;
(7) Investments represented by Hedging
Obligations;
(8) loans or advances to employees made in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $2.0 million at any one time outstanding;
(9) repurchases of the Notes or the 2019 Senior Notes and repurchases and/or redemptions of the 2017 Senior
Notes;
(10) extensions of trade credit or advances to customers and/or suppliers on commercially
reasonable terms in the ordinary course of business;
16
(11) Guarantees of Indebtedness of the Company or any of its
Restricted Subsidiaries issued in accordance with Section 4.09 hereof;
(12) Investments resulting
from payment of consolidated taxes that include Unrestricted Subsidiaries;
(13) other Investments in any
Person (other than an Affiliate of the Company that is not a Subsidiary of the Company) having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (13) that are at the time outstanding not to exceed the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets; provided that, if any
Investment made pursuant to this clause (13) is made in a Person that is not a Restricted Subsidiary of the Company at the date of making such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (1) of this definition and shall cease to have been made pursuant to this clause (13) for so long as such person continues to be a Restricted Subsidiary of the Company; and
(14) for the avoidance of doubt, any Restricted Investments existing on the Issue Date.
Permitted Liens means:
(1) Liens on assets of the Company or any of its Restricted Subsidiaries securing Indebtedness and other
Obligations under Credit Facilities that was permitted by the terms of this Indenture to be incurred pursuant to Section 4.09(b)(1) hereof and/or securing Hedging Obligations related thereto;
(2) Liens in favor of the Company;
(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with
the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition, and not incurred in contemplation of, such acquisition;
(5) Liens to secure the performance of statutory obligations, insurance, surety or appeal bonds, workers
compensation obligations, performance bonds, letters of credit or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations);
(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4)
hereof covering only the assets acquired with or financed by such Indebtedness;
(7) Liens existing on the
Issue Date or from contractual commitments existing on the Issue Date other than Liens securing Indebtedness and other obligations incurred pursuant to Section 4.09(b)(1) hereof;
17
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with
GAAP has been made therefor;
(9) Liens imposed by law, such as carriers, warehousemens,
landlords and mechanics Liens, in each case, incurred in the ordinary course of business;
(10)
survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that
were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes or the 2019 Senior Notes;
(12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture;
provided, however, that:
(i) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and
(ii) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of
(x) the outstanding principal amount, or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
(13) Liens securing Hedging Obligations made in the
ordinary course of business and not for speculation; provided that such Hedging Obligations are permitted under this Indenture;
(14) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge,
repayment or redemption of Indebtedness;
(15) Grants of software and technology licenses in the ordinary
course of business;
(16) Liens arising out of conditional sale, title retention or similar arrangements
for the sale of goods entered into in the ordinary course of business;
(17) Liens in connection with
escrow deposits made in connection with any acquisition of assets, including Capital Stock;
(18) Liens
arising as a result of litigation or legal proceedings that are currently being contested in good faith by appropriate and diligent action, including any Lien arising as a result of a judgment against the Company and/or its Restricted Subsidiaries;
(19) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium
financings; and
18
(20) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations at any one time outstanding that do not exceed the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets.
Permitted Refinancing Indebtedness means any Indebtedness of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness);
provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith);
(2) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least
as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.
Person means
any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
Private Placement Legend means the legend set forth in Section 2.06(g)(1) hereof to be placed on all
Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
QIB means a qualified institutional buyer as defined in Rule 144A.
Registration Rights Agreement means the Registration Rights Agreement, dated as of the Issue Date, among
the Company and the other parties named on the signature pages thereto, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the
Company and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
Regulation S means Regulation S promulgated under the Securities Act.
19
Regulation S Global Note means a Global Note substantially in
the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes sold in reliance on Rule 903 of Regulation S.
Responsible Officer, when used with
respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee having direct responsibility for the administration of this Indenture (or any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers 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 and having direct responsibility for the administration of this Indenture.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Period means the 40-day distribution compliance period as defined in Regulation S.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Group.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Shelf Registration Statement means the Shelf Registration Statement as defined in the Registration Rights
Agreement.
Significant Subsidiary means any Subsidiary that would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.
Stated Maturity means, with respect to any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the payment thereof.
20
Subsidiary means, with respect to any specified Person:
(1) any corporation, limited liability company, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders or other agreement that effectively transfers voting power) to vote
in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
TIA means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
Treasury Rate means as of any redemption date of the Notes, the yield to maturity as of the earlier of
(a) such redemption date or (b) the date on which the Notes are defeased or satisfied and discharged, of the most recently issued United States Treasury securities with a constant maturity (as compiled and published in the most recent
Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to December 1, 2017; provided, however, that if the period from the redemption date to December 1, 2017, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be used. Any such Treasury Rate shall be obtained by the Company.
Trustee means Wells Fargo Bank, National Association until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Unrestricted
Definitive Note means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
Unrestricted Global Note means a Global Note that does not bear and is not required to bear the Private
Placement Legend.
Unrestricted Subsidiary means any Subsidiary of the Company that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;
(3) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Persons financial condition or to cause such
Person to achieve any specified levels of operating results; and
21
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries.
All Subsidiaries of
Unrestricted Subsidiaries shall also be Unrestricted Subsidiaries.
U.S. Person means a U.S. Person as
defined in Rule 902(k) promulgated under the Securities Act.
Voting Stock of any specified Person as
of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years
obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by
(2) the then outstanding principal
amount of such Indebtedness.
Section |
1.02 Other Definitions. |
|
|
|
|
|
Term |
|
Defined in Section |
|
Affiliate Transaction |
|
|
4.11 |
|
Asset Sale Offer |
|
|
3.09 |
|
Authentication Order |
|
|
2.02 |
|
Change of Control Offer |
|
|
4.15 |
|
Change of Control Payment |
|
|
4.15 |
|
Change of Control Payment Date |
|
|
4.15 |
|
Covenant Defeasance |
|
|
8.03 |
|
DTC |
|
|
2.03 |
|
Event of Default |
|
|
6.01 |
|
Excess Proceeds |
|
|
4.10 |
|
incur |
|
|
4.09 |
|
Legal Defeasance |
|
|
8.02 |
|
Offer Amount |
|
|
3.09 |
|
Offer Period |
|
|
3.09 |
|
Paying Agent |
|
|
2.03 |
|
Permitted Debt |
|
|
4.09 |
|
Payment Default |
|
|
6.01 |
|
Purchase Date |
|
|
3.09 |
|
Registrar |
|
|
2.03 |
|
Reinstatement Date |
|
|
4.20 |
|
Restricted Payments |
|
|
4.07 |
|
Suspended Covenants |
|
|
4.20 |
|
22
Section 1.03 |
Incorporation by Reference of Trust Indenture Act. |
Whenever this
Indenture refers to a provision of the TIA, the provision 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 securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 |
Rules of Construction. |
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) will shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 |
Form and Dating. |
(a) General. The Notes and the Trustees
certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
23
(b) Global Notes. Notes issued in global form will be substantially in the
form of Exhibit A hereto (including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the Global Note attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A hereto
(but without the Global Note Legend thereon and without the Schedule of Exchanges of Interests in the Global Note attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
Section 2.02 |
Execution and Authentication. |
At least one Officer must sign the Notes
for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by
the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by an Officer (an Authentication
Order), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of
Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate 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 Holders or an Affiliate
of the Company.
Section 2.03 |
Registrar and Paying Agent. |
The Company will maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (Registrar) and an office or agency where Notes may be presented for payment (Paying Agent). The Registrar will keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term Registrar includes any co-registrar and 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 will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
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The Company initially appoints The Depository Trust Company
(DTC) to act as Depositary with respect to the Global Notes.
The Company initially appoints the
Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 |
Paying Agent to Hold Money in Trust. |
The Company will require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest or
Additional Interest, if any, on the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or
a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will
serve as Paying Agent for the Notes.
Section 2.05 |
Holder Lists. |
The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven
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 of Notes and the
Company shall otherwise comply with TIA § 312(a).
Section 2.06 |
Transfer and Exchange. |
(a) Transfer and Exchange of Global
Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary;
(2) subject to any limitations imposed by the Depositary pursuant to its then-current practices, the Company in
its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of Default with respect to the Notes.
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Upon the occurrence of either of the preceding events in (1) or
(2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one
or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in
the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all
transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
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(ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests
to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with
the requirements of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if the
transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer,
(ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any
such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or
(D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note
(c) Transfer or Exchange of Beneficial
Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in
the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if
such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
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(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer,
(ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar
receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
29
(ii) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of
a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will
execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a
Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the
Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
30
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such
Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a
Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar
receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
31
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee
will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to
subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of
Definitive Notes and such Holders compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder
must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will
be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
32
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the
Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange
Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate:
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(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange
Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such
Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The
following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (RULE 144A)) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (REGULATION S), (2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT
IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) AND THE LAST DATE ON WHICH MERCER INTERNATIONAL INC. (THE COMPANY) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE
OR ANY PREDECESSOR OF THIS NOTE, OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
34
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(C), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend. xx
(2) Global Note Legend. Each Global Note will bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (570 WASHINGTON BOULEVARD, JERSEY CITY, NEW JERSEY)
(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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
(h) Cancellation and/or Adjustment of
Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note
will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
35
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will
authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(4) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment date.
(6) Prior to due
presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
36
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates
and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 |
Replacement Notes. |
If any mutilated Note is surrendered to the Trustee
or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the
Trustees requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 |
Outstanding Notes. |
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 |
Treasury Notes. |
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the
Company, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so
disregarded.
37
Section 2.10 |
Temporary Notes. |
Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 |
Cancellation. |
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company
may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 |
Defaulted Interest. |
If the Company defaults in a payment of interest on
the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the
Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date may be less than seven (7) days prior to the related payment date for such defaulted interest. At least ten (10) days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 |
Notices to Trustee. |
If the Company elects to redeem Notes pursuant to
the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date (unless such redemption is in connection with the defeasance of the Notes pursuant to
Article 8 hereof or in connection with the satisfaction and discharge of this Indenture pursuant to Article 11 hereof, in which case such delivery may occur on such earlier date as a notice of redemption is given pursuant to Section 3.03
hereof), an Officers Certificate setting forth:
(1) the clause of this Indenture pursuant to which
the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
38
Section 3.02 |
Selection of Notes to Be Redeemed or Purchased. |
If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase by lot in accordance with the applicable procedures of DTC unless otherwise required by law or applicable stock
exchange requirements.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in minimum amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if
all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, provided Notes are redeemed or repurchased in denominations authorized by this Indenture. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 |
Notice of Redemption. |
Subject to the provisions of Section 3.09
hereof, at least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail (in the case of Notes held in book entry form, by electronic transmission), a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Article 8 or 11 hereof.
The notice will identify the Notes to be redeemed and
will state:
(1) the redemption date;
(2) the redemption price;
(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 upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(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;
(6) that, unless the Company defaults in making such redemption payment, interest on Notes called for
redemption ceases to accrue on and after the redemption date;
39
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the
Companys request, the Trustee will give the notice of redemption in the Companys name and at its expense; provided, however, that the Company has delivered to the Trustee at least 45 days (unless a shorter period is agreed to by
the Trustee) 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.
Any such redemption may, at the Companys discretion, be subject to one or more conditions precedent, including any
related sale of Equity Interests (other than Disqualified Stock) or a Change of Control. In addition, if such redemption is subject to the satisfaction of one or more conditions precedent, the related notice shall describe each such condition, and
if applicable, shall state that, in the Companys discretion, the date of redemption may be delayed until such time as any or all such conditions shall be satisfied or waived (provided that in no event shall such redemption date be
delayed to a date later than 60 days after the date on which such notice was mailed), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the
redemption date, or by the redemption date as so delayed.
Section 3.04 |
Effect of Notice of Redemption. |
Once notice of redemption is mailed in
accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price, subject to any conditions to the redemption as permitted pursuant to the last paragraph of
Section 3.03 hereof.
Section 3.05 |
Deposit of Redemption or Purchase Price. |
One Business Day prior to the
redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest and Additional Interest, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of and
accrued interest and Additional Interest, if any, on all Notes to be redeemed or purchased.
If the Company complies with
the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for
redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until
such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
40
Section 3.06 |
Notes Redeemed or Purchased in Part. |
Upon surrender of a Note that is
redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.
Section 3.07 |
Optional Redemption. |
(a) At any time prior to December 1, 2017,
the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price of 107.750% of the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to (but not including) the redemption date, with the net cash proceeds of a sale of Equity Interests (other than Disqualified Stock) of the Company; provided that:
(1) at least 65% of the aggregate principal amount of Notes issued under this Indenture (excluding Notes held
by the Company and its Subsidiaries but including any Additional Notes issued under this Indenture) remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of such sale of Equity Interests.
(b) At any time prior to December 1, 2017, the Company may on any one or more occasions redeem all or a part of the Notes
upon not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest,
if any, to (but not including) the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
(c) On or after December 1, 2017, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60
days notice to the Holders, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest (including any Additional Interest) on the Notes redeemed to (but not including) the
applicable redemption date, if redeemed during the twelve-month period beginning on December 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
|
|
|
|
|
Year |
|
Percentage |
|
2017 |
|
|
105.813 |
% |
2018 |
|
|
103.875 |
% |
2019 |
|
|
101.938 |
% |
2020 and thereafter |
|
|
100.000 |
% |
d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
Section 3.08 |
Mandatory Redemption; No Sinking Fund. |
The Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes or, except as set forth in Sections 4.10 and 4.15 hereof, to repurchase the Notes at the option of the Holders.
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Section 3.09 |
Offer to Purchase by Application of Excess Proceeds. |
In the event that,
pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an Asset Sale Offer), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the
Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, including the 2019 Senior Notes. The Asset Sale Offer will remain open for a period of at
least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the Offer Period). No later than three Business Days after the
termination of the Offer Period (the Purchase Date), the Company will apply all Excess Proceeds (the Offer Amount) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata
basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any
accrued and unpaid interest and Additional Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders (or by electronic transmission in the case of Notes held in book-entry form). The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the
Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have
a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000 in excess thereof;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to
surrender the Note, with the form entitled Option of Holder to Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be
entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a 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;
42
(8) that, if the aggregate principal amount of Notes and other
pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and
such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date,
the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers Certificate stating that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or
deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than
as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 |
Payment of Notes. |
The Company will pay or cause to be paid the
principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and Additional Interest, if any, will be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at a rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace period) at the same rate to the extent lawful.
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Section 4.02 |
Maintenance of Office or Agency. |
The Company will maintain in the
Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate or agent of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange
and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served, if and to the extent required by the rules and regulations of the SEC or other relevant regulatory body. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or agency.
The Company
hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
(a) Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company will furnish to the Trustee and the Holders of Notes and to the Trustee (or file with the SEC for public availability), within the time periods specified in the SECs rules and
regulations:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms
10-Q and 10-K if the Company were required to file such reports; and
(2) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
All such reports shall be prepared in
all material respects in compliance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K shall include a report on the Companys consolidated financial statements by the Companys certified
independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations
applicable to such reports (unless the SEC will not accept such a filing). Delivery of the information, documents and other reports described above to the Trustee is for informational purposes only, and the Trustees receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively
rely on an Officers Certificate). The Trustee shall have no obligation to determine whether or not such information, documents or reports have been filed with the SEC. The Company will at all times comply with TIA § 314(a).
(b) If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any
reason, the Company will nevertheless continue filing the reports specified in the preceding paragraphs with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Company will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Companys filings for any reason, the Company will post the reports referred to in the preceding paragraph on its website
within the time periods that would apply if the Company were required to file those reports with the SEC.
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(c) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary, then the quarterly and annual financial information required by paragraph
(a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Managements Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the consolidated financial condition and results of operations of the Company.
(d) For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required
by paragraphs (a) and (b) of this Section 4.03, the Company will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act. The Company will be deemed to have provided such information to Holders, securities analysts and prospective investors if it has filed reports containing such information with the SEC via the EDGAR filing system and such
reports are publicly available.
(e) Delivery of such reports, information and documents to the Trustee to the extent
required hereunder is for informational purposes only, the Trustee has no duty or obligation to investigate further and the Trustees receipt of such reports, information or documents shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Companys compliance with any of the covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers
Certificate).
Section 4.04 |
Compliance Certificate. |
(a) The Company and each Guarantor (to the
extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers Certificate stating that a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing Officers (in their capacities as such and not in their personal capacities) with a view to determining whether the Company has kept, observed, performed and fulfilled its
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 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 of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes 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, premium on, if any, or interest or Additional Interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Notes are outstanding, the Company will 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 is taking or proposes to take with respect thereto.
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Except with respect to the receipt of Note payments and any Default or Event of
Default information contained in the Officers Certificate delivered to it pursuant to this Section 4.04, the Trustee shall have no duty to monitor or investigate the Companys compliance with or the breach of any representation,
warranty or covenant made in this Indenture.
The Company will pay, and will cause each of its Restricted
Subsidiaries and any other Subsidiary with whom the Company or any Restricted Subsidiary is jointly and severally liable to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good
faith and by appropriate proceedings or where the failure to effect such payment is not reasonably expected by the Companys principal financial officer to be adverse in any material respect to the Holders of the Notes.
Section 4.06 |
Stay, Extension and Usury Laws. |
The Company and each of the Guarantors
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, 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 has been enacted.
Section 4.07 |
Restricted Payments. |
(a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any
other payment or distribution on account of the Companys or any of its Restricted Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of
its Restricted Subsidiaries) or to the direct or indirect holders of the Companys or any of its Restricted Subsidiaries Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as Restricted Payments),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing;
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(2) the Company could have incurred at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since September 30, 2014 (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (9), (10), (11) and (12) of paragraph (b) of this Section 4.07), is less than
the sum, without duplication of:
(A) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the first fiscal quarter commencing after September 30, 2014 to the end of the Companys most recently ended fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(B) 100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received
by the Company since the Issue Date (i) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company including upon exercise of stock options whether issued before or after the Issue Date (other
than Disqualified Stock) or (ii) from the issue or sale of convertible or exchangeable Disqualified Stock or convertible, exchangeable or payment-in-kind debt securities of the Company and/or its Restricted Subsidiaries that have been converted
into, exchanged or paid for in such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus
(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the Issue Date is
redesignated as a Restricted Subsidiary after the Issue Date, the lesser of (i) the Fair Market Value of the Companys Investment in such Subsidiary as of the date of such redesignation and (ii) such Fair Market Value as of the date
on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Issue Date; plus
(E) 50% of (i) any dividends, interest, intercompany loan payments or other distributions received in
cash by the Company or a Restricted Subsidiary of the Company after the Issuer Date from an Unrestricted Subsidiary of the Company, to the extent that such dividends, interest, intercompany loan payments or other distributions were not otherwise
included in the Consolidated Net Income of the Company for such period and (ii) without duplication, any amounts received in cash by the Company or a Restricted Subsidiary of the Company after the Issue Date representing the proceeds of any
settlement of any Hedging Obligations, to the extent that such dividends or cash proceeds represent gains previously recognized under GAAP and were not otherwise included in calculating the Consolidated Net Income of the Company; less 100% of any
payment made in settlement of any Hedging Obligations of the Company and its Restricted Subsidiaries to the extent such payment represents cumulative net losses previously recognized under GAAP and not previously deducted in calculating the
Consolidated Net Income of the Company.
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(b) So long as no Default has occurred and is continuing or would be caused
thereby, the provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend
or the consummation of any redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice the dividend or redemption payment would have complied
with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of
the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to
the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with (i) the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness or (ii) after the completion
of a Change in Control Offer pursuant to the terms of Section 4.15 hereof, to the extent required pursuant to any similar change of control offer provision of the indenture or other agreement governing subordinated Indebtedness;
(4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar
distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests who are not Affiliates of the Company, except Restricted Subsidiaries of the Company, on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or former officer, director or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, share
purchase agreement, shareholders agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $10.0 million in any calendar year (with
unused amounts in any calendar year, including carried over amounts, being carried over to succeeding calendar years subject to a maximum of $15.0 million in any calendar year);
(6) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation
rights to the extent such Equity Interests represent a portion of the exercise price of those stock options or stock appreciation rights;
(7) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series
of Disqualified Stock of the Company issued on or after the Issue Date in accordance with the Fixed Charge Coverage test set forth in Section 4.09 hereof;
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(8) payments or distributions to shareholders exercising
appraisal or discount rights pursuant to applicable law pursuant to or in connection with a merger, consolidation or transfer of all or substantially all of the Company and its Restricted Subsidiaries assets that complies with the provisions
of this Indenture;
(9) in the event of a Change of Control, and if no Default or Event of Default shall
have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes or the Guarantee
(including the Exchange Notes and any Guarantees thereof) of such Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest therein; provided that
prior to or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the indenture) has made the Change of Control Offer with respect to the
Notes (including the Exchange Notes) and has repurchased all Notes (including the Exchange Notes) validly tendered and not withdrawn in connection with such Change of Control Offer;
(10) in the event of an Asset Sale which requires the Company to make an Asset Sale Offer, and if no Default or
Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes
or the Guarantee (including the Exchange Notes and any Guarantees thereof) of such Guarantor, in each case, at a purchase price not greater than 100% of the principal amount of such Indebtedness, plus any accrued and unpaid interest therein;
provided that prior to or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes (including the Exchange Notes) and has
repurchased all Notes (including the Exchange Notes) validly tendered and not withdrawn in connection with such Asset Sale Offer;
(11) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of
any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders rights plan adopted for the purpose of protecting shareholders from unfair takeover practices; provided that any such purchase,
redemption, acquisition, cancellation or other retirement of such rights shall not be for the purpose of evading the limitations of this covenant (as determined in good faith by the Board of Directors of the Company); and
(12) other Restricted Payments in an aggregate amount not to exceed $100.0 million since the Issue Date.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by
this Section 4.07 will be determined in good faith (a) in the case of assets or securities of $20.0 million or less by the Chief Financial Officer, Controller or Treasurer of the Company set forth in a certificate delivered to the Trustee,
and (b) in the case of assets or securities valued at more than $20.0 million by the Board of Directors of the Company, and set forth in an Officers Certificate delivered to the Trustee.
For purposes of determining compliance with this Section 4.07, if any Investment or Restricted Payment would be permitted
pursuant to Section 4.07(a) hereof, one or more clauses of Section 4.07(b) hereof and/or one or more of the exceptions contained in the definition of Permitted Investments, the Company may classify or divide such Investment or
Restricted Payment in any manner that complies with this covenant and may later reclassify, divide or re-divide, in whole or in part in its sole discretion, any such Investment or Restricted Payment in any manner that complies with this covenant so
long as the Investment or Restricted Payment (as so reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
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Section 4.08 |
Dividend and Other Payment Restrictions Affecting Subsidiaries. |
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted
Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; provided that the
subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing
under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities as in effect
on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(2) (A) this Indenture, the Notes and the Note Guarantees or (B) the 2019 Senior Notes Indenture, the
2019 Senior Notes and the Guarantees thereof;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation 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, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) customary non-assignment provisions in contracts and licenses entered into
in the ordinary course of business;
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(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending the sale or other disposition;
(8) Permitted Refinancing Indebtedness;
provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit
the right of the debtor to dispose of the assets subject to such Liens;
(10) provisions limiting the
disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, Capital Stock sale agreements and other similar agreements entered into with the approval of the Companys Board of
Directors, which limitation is applicable only to the assets, or (in the case of Capital Stock sales) entities, that are the subject of such agreements;
(11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in
the ordinary course of business;
(12) agreements governing Hedging Obligations;
(13) agreements governing Indebtedness permitted to be incurred by Restricted Subsidiaries of the Company under
the provisions of Section 4.09 hereof; provided that the encumbrances and/or restrictions in such agreements (except those agreements entered into pursuant to clause (15) of the definition of Permitted Debt) are
customary for Indebtedness of the type incurred and will not adversely affect the Companys ability to make payments of principal or interest on the Notes; and
(14) any Liens or restrictions imposed by any amendments of contracts, instruments or obligations referred to
in clauses (1) to (13) of this paragraph, provided that such amendments are not materially more restrictive with respect to such Liens and restrictions than those prior to any such amendment or refinancing as determined in good
faith by the Companys Board of Directors.
Section 4.09 |
Incurrence of Indebtedness and Issuance of Preferred Stock. |
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively,
incur) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any of the Companys Restricted Subsidiaries that are Guarantors may incur Indebtedness (including Acquired Debt) or issue
preferred stock, if the Fixed Charge Coverage Ratio for the Companys most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or preferred stock is issued, as the case may be, would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
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(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively, Permitted Debt):
(1) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) not to exceed the greater of (x) $250.0 million and (y) the amount of the Borrowing Base on the date of incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of Indebtedness represented by the Notes and the 2019 Senior Notes to be
issued on the Issue Date and the incurrence by any Restricted Subsidiary of any Guarantee of the Notes or the 2019 Senior Notes;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital
Lease Obligations (other than Deemed Capitalized Leases), mortgage financings, project financing or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design,
construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed at any time outstanding the greater of (i) $50.0 million and (ii) 3.5% of Consolidated Tangible Assets;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness
in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge any Indebtedness that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4), (5),
(12) or (15) of this Section 4.09(b);
(6) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and any Restricted Subsidiary that is
not a Guarantor is the payee of such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the
case of a Guarantor; and
(B) (1) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
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(7) the issuance by any of the Companys Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being
held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(B) any sale or
other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not
permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of
Hedging Obligations (which may, but need not be, under Credit Facilities) in the ordinary course of business and not for speculation;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be
subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers compensation claims, self-insurance obligations, bankers acceptances, performance and surety bonds in the ordinary course of business;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) (x) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which
such Restricted Subsidiary was acquired by the Company (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary of or was otherwise acquired by the Company) or (y) Indebtedness of the Company or any Restricted Subsidiary that is a Guarantor incurred to finance an acquisition; provided, however, that, in either case, after giving
effect to the transactions that result in the incurrence of such Indebtedness, on a pro forma basis, either (a) the Company would have been able to incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof or
(b) the Companys Fixed Charge Coverage Ratio would not be less than immediately prior to such transactions;
(13) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price, earn out or similar obligations, in each case incurred or assumed in connection with the disposition of any assets or property or Capital Stock of a Restricted Subsidiary;
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(14) Indebtedness of the Company or any Restricted Subsidiary to
the extent the net proceeds of such Indebtedness are deposited and used to defease, covenant defease or discharge the Notes pursuant to Article 8 or Article 11 hereto or the 2019 Senior Notes in the corresponding provisions of the 2019 Senior Notes
Indenture; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness (which may, but need not, be pursuant to Credit Facilities) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed the greater of (i) $60.0 million and (ii) 4.0% of Consolidated Tangible Assets.
The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a first or junior
Lien basis.
For purposes of determining compliance with this Section 4.09, in the event that an item of proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) above or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company shall be permitted in its
sole discretion to divide, re-divide, classify or reclassify such Indebtedness, or later divide, re-divide, classify or reclassify such item of Indebtedness, in any manner that complies with this covenant. Indebtedness under Credit Facilities
outstanding on the Issue Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. Indebtedness permitted by this covenant need not be permitted
solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness. The accrual of interest, the accretion or
amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and
the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
or preferred stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued to the extent included in the definition
of Fixed Charges. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such
Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in
effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness
being refinanced. Notwithstanding any other provision of this Indenture, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be or be deemed to be exceeded as a
result of fluctuations in exchange rates or currency values.
54
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue
discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the
lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Section 4.10 |
Asset Sales. |
The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (provided that Fair Market Value shall be
determined on the date of the contractual agreement for such Asset Sale); and
(2) at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following shall be deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities, as shown on the Companys most recent consolidated balance sheet, of the Company or
any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to an agreement that releases the
Company or such Restricted Subsidiary from, or indemnifies the Company or such Restricted Subsidiary against, further liability;
(C) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are converted within 120 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(D) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this
Section 4.10.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay or prepay
Indebtedness and other Obligations under a secured Credit Facility;
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(2) to acquire (including by way of a purchase of assets or
stock, merger, consolidation or otherwise), or enter into a binding commitment to acquire within 180 days thereafter, all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such
acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make, or enter into a binding commitment to make within 60 days thereafter, a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in
a Permitted Business;
(5) to replace properties and/or assets that were the subject of the Asset Sale; or
(6) any combination of the foregoing.
Pending the final application of any Net Proceeds, the Company or a restricted Subsidiary may temporarily reduce revolving
credit borrowings (under Credit Facilities or otherwise) or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this
Section 4.10 will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $30.0 million, within five days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09
hereof (including the 2019 Senior Notes) to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%
of the principal amount of the Notes to be purchased plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount
of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the
provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this
Section 4.10 by virtue of such compliance.
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Section 4.11 |
Transactions with Affiliates. |
(a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an Affiliate Transaction) involving aggregate consideration in excess of $15.0 million, unless:
(1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or if, in the good faith judgment of the Companys Board of Directors, no
comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors of the Company set forth in an Officers Certificate certifying that such Affiliate Transaction complies with clause
(1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions
of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, trustee or director
indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of
the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable compensation or fees (including reimbursement of expenses) to directors or officers
of the Company and its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than
Disqualified Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments that do not
violate Section 4.07 hereof;
(7) Permitted Investments that are permitted by this Indenture;
(8) provision of corporate-level administrative, marketing, tax, accounting, budgeting, treasury, finance,
employee benefits, legal, risk management and other similar services for the benefit of Unrestricted Subsidiaries of the Company on substantially the same terms provided to Restricted Subsidiaries of the Company;
(9) payment of consolidated taxes on behalf of Restricted Subsidiaries and Unrestricted Subsidiaries;
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(10) (a) purchases, sales or other transfers of pulp, fiber,
chemicals and other consumables between or among the Company or any Restricted Subsidiary and any Unrestricted Subsidiary at market prices pursuant to arrangements approved by the Companys Board of Directors as being fair, from a financial
point of view, to the Company or the applicable Restricted Subsidiary, as the case may be; (b) purchases, sales or other transfers of spare parts or mill consumables between any Restricted Subsidiary and any Unrestricted Subsidiary at book
value; (c) the provision of logistics, planning, transportation and fiber procurement services between and/or among any Restricted Subsidiary and Unrestricted Subsidiary at cost; and (d) other transactions with customers, clients,
suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, that are fair to the Company or the Restricted Subsidiary, as the case may be, in
the reasonable determination of the Companys Board of Directors;
(11) payment of sales agency,
administration, management and other fees, payment of interest, principal, dividends or other distributions, in case from an Unrestricted Subsidiary to the Company or a Restricted Subsidiary to the Company; and
(12) loans or advances to employees in the ordinary course of business not to exceed $5.0 million in the
aggregate at any one time outstanding.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur or assume any Lien of any kind on any asset now owned or hereafter acquired, except Permitted Liens, unless all payments due under this Indenture and the Notes are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no longer secured by a Lien.
Section 4.13 |
Business Activities. |
The Company will not, and will not permit any of
its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.
Section 4.14 |
Corporate Existence. |
Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and effect:
(1) its corporate
existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries;
provided, however, 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 Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.
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Section 4.15 |
Offer to Repurchase Upon Change of Control. |
(a) Upon the occurrence of
a Change of Control, the Company will make an offer (a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment date (the Change of Control Payment). Within 20 days following any Change of Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and 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 purchase price and the purchase date, which shall be no earlier than 30 days and no 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 Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled Option of Holder to Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business
on the third 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 facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and
(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, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with
the provisions of Sections 3.09 or 4.15 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.15 by virtue of
such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control
Offer;
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(2) prior to 12 noon New York City time, deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an
Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
The Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to
each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of
Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and Section 3.09 hereof and
purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07(c) hereof, unless and until there is a default in payment of the applicable
redemption price.
(d) Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in
advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. The closing date of any such Change of
Control Offer made in advance of a Change of Control may be changed to conform to the actual closing date of the Change of Control, provided that such closing date is not earlier than 30 days nor later than 60 days from the date the Change of
Control Offer notice is mailed as described in the first paragraph of this section.
(e) If Holders of not less than 90%
in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company as described in
Section 4.15(c) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party shall have the right, upon not less than 30 nor more than 60 days prior notice, given not more than 30
days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but
excluding the date of redemption.
Section 4.16 |
Payments for Consent. |
The Company will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.
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Section 4.17 |
Limitation on Issuances of Guarantees of Indebtedness. |
The Company will
not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee any other Indebtedness of the Company (except Permitted Liens) unless such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to
this Indenture providing for the Guarantee of the payment of the Notes by such Restricted Subsidiary, which Guarantee will be senior to or pari passu with such Restricted Subsidiarys Guarantee of such other Indebtedness.
Section 4.18 |
Note Guarantees. |
If the Company or any of its Restricted Subsidiaries
acquires or creates a Domestic Subsidiary after the Issue Date, then the Company will cause that newly acquired or created Domestic Subsidiary (other than a Domestic Subsidiary the sole business of which is the direct or indirect ownership of one or
more Foreign Subsidiaries) to become a Guarantor and execute a Note Guarantee pursuant to a supplemental indenture in the form and substance of Exhibit F attached hereto and deliver an Opinion of Counsel and Officers Certificate, reasonably
satisfactory to the Trustee, to the Trustee within 10 Business Days of the date on which it was acquired or created to the effect that such supplemental indenture has been duly authorized, executed and delivered by that Domestic Subsidiary and
constitutes a valid and binding agreement of that Domestic Subsidiary, enforceable in accordance with its terms (subject to customary exceptions); provided that any Domestic Subsidiary that does not constitute a Significant Subsidiary need
not become a Guarantor until a date not later than 10 Business Days after delivery of the Companys financial statements for its most recently completed fiscal quarter in respect of which such Domestic Subsidiary has become a Significant
Subsidiary based on the financial statements of the Company and such Domestic Subsidiary as of and for the Companys most recently completed fiscal year. The Company may designate any Restricted Subsidiary as a Guarantor at any time. The form
of such Note Guarantee is attached as Exhibit E hereto.
Section 4.19 |
Designation of Restricted and Unrestricted Subsidiaries. |
The Board of
Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value
of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.07 hereof and/or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time
and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a
Default.
Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the
Trustee by filing with the Trustee within 45 days after the end of the fiscal quarter of the Company in which such designation was made a certified copy of a resolution of the Board of Directors giving effect to such designation and an
Officers Certificate certifying that such designation complied with the preceding conditions and did not violate Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements of the definition of an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if
such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only
be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or
Event of Default would be in existence following such designation.
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Section 4.20 |
Change in Covenants When Notes Rated Investment Grade |
If on any date
following the Issue Date:
(a) the Notes are rated Baa3 or better by Moodys and BBB- or better by S&P (or, if
either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other nationally recognized statistical rating organization registered under
Section 15E of the Exchange Act selected by the Company as a replacement agency); and
(b) no Default or Event of
Default shall have occurred and be continuing,
then, beginning on that day and subject to the provisions of this Section 4.20, the
provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.17, 4.19 and 5.01(5) will be suspended (the Suspended Covenants).
During any period that the Suspended Covenants have been suspended, the Companys Board of Directors may not designate
any of its Subsidiaries as Unrestricted Subsidiaries pursuant Section 4.19 hereof or the definition of Unrestricted Subsidiary.
Notwithstanding the foregoing, if on any subsequent date (the Reinstatement Date), the Notes cease to
maintain ratings of at least Baa3 and BBB- from Moodys and S&P, respectively, the Suspended Covenants will be reinstituted as of and from the date of such rating decline, provided however that no Default, Event of Default or breach
of any kind shall be deemed to exist under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of the Company or its Subsidiaries shall bear any liability for, any actions taken or events occurring
during the period of time that the Suspended Covenants were suspended, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. Calculations under the
reinstated Section 4.07 will be made as if Section 4.07 had been in effect since the Issue Date.
The Company
shall deliver an Officers Certificate to the Trustee, specifying (i) if the Suspended Covenants will be suspended and the date thereof, (ii) if a Reinstatement Date has occurred and (iii) the dates of the commencement or ending
of any period of Suspended Covenants. The Trustee shall not have any duty to monitor whether or not a Suspended Covenant event or a Reinstatement Date has occurred or if a Suspended Covenant period has commenced or ended, nor any duty to notify the
Holders of the Notes of any of the foregoing.
ARTICLE 5
SUCCESSORS
Section 5.01 |
Merger, Consolidation, or Sale of Assets. |
The Company shall not,
directly or indirectly: (i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
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(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia, or the laws of Canada or any
province or territory thereof;
(2) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant
to a supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such
transaction, no Default or Event of Default exists;
(4) the Company shall have delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(5) the Company or the Person formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (ii) have had
a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period.
In addition, the Company will not, directly or indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person.
This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another
jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or
other disposition of assets between or among the Company and its Restricted Subsidiaries.
Section 5.02 |
Successor Corporation Substituted. |
Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof,
the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the Company shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved
from the obligation to pay the principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes except in the case of a sale of all of the Companys assets in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 |
Events of Default. |
Each of the following is an Event of
Default:
(1) default for 30 days in the payment when due of interest, or Additional Interest, if
any, on the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on the Notes;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.10, 4.15 or 5.01 hereof;
(4) failure by the
Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other
agreements in this Indenture;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of such default (a Payment Default); or
(B) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $35.0 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or
courts of competent jurisdiction aggregating in excess of $35.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;
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(7) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(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, or
(D) makes a general assignment for the benefit of its creditors;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; and
(9) except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee.
Section 6.02 |
Acceleration. |
In the case of an Event of Default specified in clause
(7) or (8) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the
Notes shall become due and payable immediately.
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The Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration and its consequences, if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium or Additional Interest, if any, that has become due solely because of the acceleration) have been cured or waived.
Section 6.03 |
Other Remedies. |
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest or Additional Interest, if any, 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 of a Note 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. All
remedies are cumulative to the extent permitted by law.
Section 6.04 |
Waiver of Past Defaults. |
Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium on, if any, or interest or Additional Interest, if any, on the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. 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; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 |
Control by Majority. |
Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06 |
Limitation on Suits. |
A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) such Holder gives to the Trustee written notice that an Event of
Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and
provide to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
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(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period,
Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07 |
Rights of Holders of Notes to Receive Payment. |
Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium on, if any, or interest or Additional Interest, if any, on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 |
Collection Suit by Trustee. |
If an Event of Default specified in
Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium on, if any, and
interest and Additional Interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount 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 6.09 |
Trustee May File Proofs of Claim. |
The Trustee is authorized to 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 the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims 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. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. 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 of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money and property in the following order:
First: to the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and
interest and Additional Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest and Additional Interest, if any, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11 |
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 a 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 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 |
Duties of Trustee. |
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(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. However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated herein).
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(c) The Trustee may not be relieved from liabilities 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 will not be
liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will 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 Section 6.05 hereof.
(d) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The Trustee
will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 |
Rights of Trustee. |
(a) The Trustee may conclusively rely upon any
document 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.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate and an Opinion of Counsel.
The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request
or direction.
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(g) The Trustee shall not be required to give any note, bond or surety in respect
of the trusts and powers under this Indenture.
(h) The Trustee may request that the Company deliver an Officers
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an
Officers Certificate, including any person specified as so authorized in such certificate previously delivered and not superseded.
(i) In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(j) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which
is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
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 otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 |
Trustees Disclaimer. |
The Trustee will not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Companys use of the proceeds from the Notes or any money paid to the Company or upon the Companys direction under
any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 |
Notice of Defaults. |
If a Default or Event of Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium on, if any, or interest or Additional Interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests
of the Holders.
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Section 7.06 |
Reports by Trustee to Holders of the Notes. |
(a) Within 60 days after
each May 15 beginning with the May 15 following the Issue Date, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA
§313(a) (but if no event described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA §313(b)(2). The Trustee will also transmit by
mail all reports as required by TIA §313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes will be mailed by the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which the Notes are listed in accordance with TIA §313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07 |
Compensation and Indemnity. |
(a) The Company will pay to the Trustee
from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustees compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the
Trustees agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee and its officers,
directors, employees and agents against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of
enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in
the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be
unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this Section 7.07 will survive
the satisfaction and discharge of this Indenture.
(d) To secure the Companys and the Guarantors payment
obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium on, if any, or interest or Additional Interest,
if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
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(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA §313(b)(2) to the extent applicable.
Section 7.08 |
Replacement of Trustee. |
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee will become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company.
The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
(d) 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 at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with
Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its
succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Companys obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
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Section 7.09 |
Successor Trustee by Merger, etc. |
If the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 |
Eligibility; Disqualification. |
There will at all times be a Trustee
hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and (5). The Trustee
is subject to TIA §310(b).
Section 7.11 |
Preferential Collection of Claims Against Company. |
The Trustee is
subject to TIA §311(a), excluding any creditor relationship listed in TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
Section 8.01 |
Option to Effect Legal Defeasance or Covenant Defeasance. |
The Company
may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.02 |
Legal Defeasance and Discharge. |
Upon the Companys exercise under
Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from
their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the
Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be outstanding only for the purposes
of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest
or premium or Additional Interest, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Companys obligations with respect to such Notes under Article 2 and Section 4.02 hereof;
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(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Companys and the Guarantors obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding
the prior exercise of its option under Section 8.03 hereof.
Section 8.03 |
Covenant Defeasance. |
Upon the Companys exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations
under the covenants contained in Sections 4.03, 4.04, 4.07 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17., 4.18 and 4.19 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes, and the Guarantors shall be
deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, Covenant Defeasance), and the Notes
will 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 will continue to be deemed
outstanding for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the
Company and the Restricted Subsidiaries may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except
as specified above, the remainder of this Indenture and such Notes will be unaffected thereby. In addition, upon the Companys exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through Section 6.01(6), Section 6.01(7) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary), Section 6.01(8) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary)
and Section 6.01(9) hereof will not constitute Events of Default.
Section 8.04 |
Conditions to Legal or Covenant Defeasance. |
In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company
must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, and interest and Additional Interest, if any, on, the outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an
Opinion of Counsel, reasonably acceptable to the Trustee, confirming that:
(A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling; or
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(B) since the Issue Date, there has been a change in the
applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal 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 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel, reasonably acceptable to the Trustee, confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject to federal 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 Default or Event of Default shall have occurred and be continuing on the date of such deposit (other
than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(5) such Legal Defeasance or
Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the
Company or any of its Restricted Subsidiaries is bound;
(6) the Company must deliver to the Trustee an
Officers Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors
of the Company or others; and
(7) the Company must deliver to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 |
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. |
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the outstanding Notes will 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 (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes
of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such money need not be segregated from other funds except to the extent required by law.
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The Company will pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal 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.
Notwithstanding anything in this Article 8 to the contrary,
the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 |
Repayment to Company. |
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest or Additional Interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or
interest or Additional Interest, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 |
Reinstatement. |
If the Trustee or Paying Agent is unable to apply any
U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Companys and the Guarantors obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium,
if any, or interest or Additional Interest, if any, on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 |
Without Consent of Holders of Notes. |
Notwithstanding Section 9.02
hereof, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes or the Note Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency, as evidenced by an Officers Certificate;
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(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes, in order to comply with any Applicable Procedures, or otherwise alter the provisions of Article 2 hereof in a manner that does not materially adversely affect any Holder;
(3) to provide for the assumption of the Companys or a Guarantors obligations to the Holders of the
Notes and Note Guarantees by a successor to the Company or such Guarantor pursuant to Article 5 or Article 10 hereof;
(4) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that
does not, in the good faith determination of the Board of Directors of the Company, adversely affect the legal rights hereunder of any Holder in any material respect;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture
under the TIA;
(6) to conform the text of this Indenture or the Notes to any provision of the
Description of Notes section of the Companys Offering Memorandum dated November 18, 2014, relating to the offering of the Notes, to the extent that such provision in that Description of Notes was intended to be a
verbatim recitation of a provision of this Indenture, the Note Guarantees or the Notes, as evidenced in an Officers Certificate;
(7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this
Indenture as of the Issue Date; or
(8) to allow any Restricted Subsidiary to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in
the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to
enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 |
With Consent of Holders of Notes. |
Except as provided below in this
Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and the Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest or
Additional Interest, if any, on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Notes or the Note Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with the purchase
of, or tender offer or exchange offer for, the Notes). Section 2.08 hereof shall determine which Notes are considered to be outstanding for purposes of this Section 9.02.
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Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the
Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture.
It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.
After an
amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of
the Notes then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture or the Notes or the Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Notes (except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal of, or premium, if any, or interest or
Additional Interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of, or interest or premium or Additional Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.10
and 4.15 hereof);
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(8) release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or
(9) make any
change in the preceding amendment and waiver provisions.
Section 9.03 |
Compliance with Trust Indenture Act. |
Every amendment or supplement to
this Indenture or the Notes will be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
Section 9.04 |
Revocation and Effect of Consents. |
Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if
notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 |
Notation on or Exchange of Notes. |
The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.
Section 9.06 |
Trustee to Sign Amendments, etc. |
The Trustee will sign any amended or
supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 12.04 hereof, an Officers Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and constitutes the legally
valid, binding and enforceable obligation of the Company and (if applicable) the Guarantors, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles including limitations and other restrictions on a partys rights to specific performance and indemnification.
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ARTICLE 10
NOTE GUARANTEES
(a) Subject to this Article 10, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the
Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium on,
if any, and interest and Additional Interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest and
Additional Interest, if any, on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that 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 any performance so guaranteed for whatever reason, the Guarantors will
be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Note Guarantee will not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees
that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Note Guarantee.
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Section 10.02 |
Limitation on Guarantor Liability. |
Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that
the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect
to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 |
Execution and Delivery of Note Guarantee. |
To evidence its Note
Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose
signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the Issue Date, if required by Section 4.20 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.20 hereof and this Article 10, to
the extent applicable.
Section 10.04 |
Guarantors May Consolidate, etc., on Certain Terms. |
Except as otherwise
provided in Section 10.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other
than the Company or another Guarantor, unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(A) subject to Section 10.05 hereof, the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee on the terms set forth herein or therein, pursuant to a supplemental
indenture in the form and substance set forth in Exhibit F hereto; or
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(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture, including without limitation, Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and in the form and substance set forth in Exhibit F hereto, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the
Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and
benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b) above, nothing contained in this
Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after giving effect
to such transaction) the Company or a Restricted Subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the Capital Stock of such Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers
Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof, the Trustee will execute any
documents reasonably requested by the Company, at the Companys expense, in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.
(b) Upon designation by the Company of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this
Indenture in accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain
liable for the full amount of principal of, premium on, if any, and interest and Additional Interest, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.
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ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 |
Satisfaction and Discharge. |
This Indenture will be discharged and will
cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for cancellation (a) have become due and payable ,
(b) will become due and payable at their Stated Maturity within one year or (c) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company;
(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient (as determined by the Company),
without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Interest, if any, and accrued interest to the Stated
Maturity or redemption date;
(3) no Default or Event of Default has occurred and is continuing on the date
of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which
the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(4) the Company
or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture;
(5) the
Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and
(6) the Company has delivered an Officers Certificate and an Opinion of Counsel to the Trustee stating
that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 of
this Indenture, that, by their terms, survive the satisfaction and discharge of this Indenture.
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Section 11.02 |
Application of Trust Money. |
Subject to the provisions of
Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest and Additional Interest, if any, for whose payment such
money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01
hereof 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 Companys and any Guarantors obligations under
this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium on, if any, or interest or
Additional Interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 |
Trust Indenture Act Controls. |
If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties will control.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the
others address:
If to the Company and/or any Guarantor:
Mercer International Inc.
14900 Interurban Avenue South, Suite 282
Seattle, Washington 98168
Attention: Chief Financial Officer
Facsimile No.: (604) 683-3205
with copies to:
Mercer International Inc.
Suite 1120
700 West Pender Street
Vancouver, British Columbia
Canada V6C 1G8
Attention: Chief Financial Officer
Facsimile No.: (604) 684-1094
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and
Sangra, Moller
Barristers & Solicitors
1000 Cathedral Place
925 West Georgia Street
Vancouver, British Columbia
Canada V6C 3L2
Attention: Harjit Sangra
Facsimile No.: (604) 669-8803
If to the Trustee:
Wells Fargo Bank, National Association
333 S. Grand Avenue, 5th Floor Suite 5A
Los Angeles, CA 90071
MAC E2064-05A
Attention: Corporate, Municipal & Escrow Services
Facsimile No.: (213) 253-7598
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or
communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or
communication will also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
Section 12.03 |
Communication by Holders of Notes with Other Holders of Notes. |
Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §312(c).
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Section 12.04 |
Certificate and Opinion as to Conditions Precedent. |
Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers Certificate in form and substance reasonably satisfactory to the Trustee (which must
include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 |
Statements Required in Certificate or Opinion. |
Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) must comply with the provisions of TIA §314(e) and must 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, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
satisfied.
Section 12.06 |
Rules by Trustee and Agents. |
The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 |
No Personal Liability of Directors, Officers, Employees and Stockholders. |
No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any 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 issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 12.08 |
Governing Law. |
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND EACH NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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Section 12.09 |
Waiver of Jury Trial. |
EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.10 |
Force Majeure. |
In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of
war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 12.11 |
USA Patriot Act. |
The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or
legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may reasonably require in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.
Section 12.12 |
No Adverse Interpretation of Other Agreements. |
This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.13 |
Successors. |
All agreements of the Company in this Indenture and the
Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05 hereof.
Section 12.14 |
Severability. |
In case any provision in this Indenture or in the Notes
is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.15 |
Counterpart Originals. |
The parties may sign any number of copies of
this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
87
Section 12.16 |
Table of Contents, Headings, etc. |
The Table of Contents,
Cross-Reference Table 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 of this Indenture and will in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
88
SIGNATURES
Dated as of November 26, 2014
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MERCER INTERNATIONAL INC. |
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By: |
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/s/ David M. Gandossi |
Name: |
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David M. Gandossi |
Title: |
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Secretary and Chief Financial Officer |
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WELLS FARGO BANK, National Association |
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As Trustee, |
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By: |
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/s/ Maddy Hall |
Name: |
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Maddy Hall |
Title: |
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Vice President |
EXHIBIT A
[Face of Note]
CUSIP/CINS
7.750% Senior Notes due 2022
MERCER INTERNATIONAL INC.
promises to pay to
[ ] or registered assigns,
the principal sum of
DOLLARS
on December 1, 2022.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: ,
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MERCER INTERNATIONAL INC. |
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By: |
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Name: |
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Title: |
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This is one of the Notes referred to
in the within-mentioned Indenture: |
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Wells Fargo Bank, National Association, as Trustee |
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By: |
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Authorized Signatory |
A-1
EXHIBIT A
[Back of Note]
7.750%
Senior Notes due 2022
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
(1) INTEREST. Mercer International Inc., a Washington
corporation (the Company), promises to pay interest on the principal amount of this Note at 7.750% per annum from November 26, 2014 until maturity and shall pay the Additional Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below. The Company will pay interest and Additional Interest, if any, semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an Interest Payment Date). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be June 1, 2015. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The
Company will pay interest on the Notes (except defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on the May 15 or November 15 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest and Additional Interest, if any, at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Additional
Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium
on, if any, and interest and Additional Interest, if any, on all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND
REGISTRAR. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
A-2
EXHIBIT A
(4) INDENTURE. The Company issued the Notes under an Indenture dated as of
November 26, 2014 (the Indenture) between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note is inconsistent with or conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
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(a) |
Except as set forth in subparagraphs (b) and (c) of this Paragraph 5 and subparagraph (a) of Paragraph 7, the Company will not have
the option to redeem the Notes prior to December 1, 2017. On or after December 1, 2017, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest (including Additional Interest, if any) on the Notes redeemed to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: |
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Year |
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Percentage |
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2017 |
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105.813 |
% |
2018 |
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103.875 |
% |
2019 |
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101.938 |
% |
2020 and thereafter |
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100.000 |
% |
Unless the Company defaults in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
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(b) |
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to December 1, 2017, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of a sale of Equity Interests (other than Disqualified Stock) of the Company at a redemption price equal to 107.750%
of the aggregate principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date; provided that at least 65% in aggregate principal amount of the Notes issued under the Indenture (excluding
Notes held by the Company and its Subsidiaries but including any Additional Notes issued under the Indenture) remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the
closing of such sale of Equity Interests. |
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(c) |
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to December 1, 2017, the Company may on any one
or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to (but not including) the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
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A-3
EXHIBIT A
(6) MANDATORY REDEMPTION. The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE
AT THE OPTION OF HOLDERS.
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(a) |
If there is a Change of Control, as and to the extent required by Section 4.15 of the Indenture, the Company will be required to make an offer
(a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date
(the Change of Control Payment). Within 20 days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. A
Change of Control Offer may be made in advance of a Change in Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. The
closing date of any such Change of Control Offer made in advance of a Change of Control may be changed to conform to the actual closing date of the Change of Control, provided that such closing date is not earlier than 30 days nor later than
60 days from the date the Change of Control Offer notice is mailed. If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or
any third party making a Change of Control Offer in lieu of the Company as described in Section 4.15(c) of the Indenture, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party shall have
the right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in
cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption. |
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(b) |
If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within five days of each date on which the aggregate amount
of Excess Proceeds exceeds $30.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of sales of assets (an Asset Sale Offer) pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional
Notes) and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if
any, thereon to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase attached to the Notes. |
A-4
EXHIBIT A
(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 whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess
thereof, unless all of the Notes held by a Holder are to be redeemed.
Any such redemption may, at the
Companys discretion, be subject to one or more conditions precedent, including any related sale of Equity Interests (other than Disqualified Stock) or a Change of Control. In addition, if such redemption is subject to the satisfaction of one
or more conditions precedent, the related notice shall describe each such condition, and if applicable, shall state that, in the Companys discretion, the date of redemption may be delayed until such time as any or all such conditions shall be
satisfied or waived (provided that in no event shall such redemption date be delayed to a date later than 60 days after the date on which such notice was mailed), or such redemption may not occur and such notice may be rescinded in the event
that any or all such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date as so delayed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The
Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange
or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.
(11) AMENDMENT,
SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the
Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the
Indenture or the Notes or the Note Guarantees may be amended or supplemented: (i) to cure any ambiguity, defect or inconsistency, as evidenced by an Officers Certificate; (ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes, or in order to comply with any Applicable Procedures, or otherwise alter the provisions of Article 2 of the Indenture in a manner that does not materially adversely affect any Holder; (iii) to provide for the
assumption of the Companys or a Guarantors obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation; (iv) to make any change that would provide any additional rights or benefits to the Holders of
the Notes or that does not, in the good faith determination of the Board of Directors of the Company, adversely affect the legal rights under the Indenture of any Holder in any material respect; (v) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA; (vi) to conform the text of the Indenture or the Notes to any provision of the Description of Notes section of the Companys Offering Memorandum
dated November 18, 2014 relating to the initial offering of the Notes, to the extent that such provision in that Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or
the Notes, as evidenced in an Officers Certificate; (vii) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture; or (viii) to allow any Restricted Subsidiary to execute a
supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes.
A-5
EXHIBIT A
(12) DEFAULTS AND REMEDIES. Events of
Default include: (i) default for 30 days in the payment when due of interest or Additional Interest, if any, on the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on the Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer to purchase) or otherwise, (iii) failure by the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or 5.01 of the Indenture;
(iv) failure by the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then
outstanding voting as a single class to comply with any of the other agreements in the Indenture or the Notes; (v) default under certain other agreements relating to Indebtedness of the Company or its Restricted Subsidiaries which default is
caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default, or results in the acceleration of such Indebtedness
prior to its express maturity; (vi) certain final judgments for the payment of money that remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; and (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor or any Person acting on its behalf denies or disaffirms its obligations under such Guarantors Note Guarantee. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in aggregate 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 of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, if any, or interest or Additional Interest, if any) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or Additional Interest, if any, or premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
A-6
EXHIBIT A
(13) 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 the Trustee.
(14) NO RECOURSE
AGAINST OTHERS. A director, trustee, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as such, will not have any liability for any obligations of the Company or
the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder 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.
(15)
AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= 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).
(17) ADDITIONAL RIGHTS OF HOLDERS
OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of November 26, 2014, among the Company and the other parties named
on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company and the
other parties thereto, relating to rights given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the Registration Rights Agreement).
(18) 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.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND EACH NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
A-7
EXHIBIT A
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made
to:
Mercer International Inc.
14900 Interurban Avenue South, Suite 282
Seattle, Washington 98168
Attention: Chief Financial Officer
with a copy to:
Mercer International Inc.
Suite 1120
700 West Pender Street
Vancouver, British Columbia
Canada V6C 1G8
Attention: Chief Financial Officer
A-8
EXHIBIT A
ASSIGNMENT FORM
Mercer International Inc. 7.750% Senior Notes due 2022
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) |
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(Insert assignees soc. sec. or tax I.D. no.) |
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(Print or type assignees name, address and zip code) |
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and irrevocably appoint |
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to transfer this Note on the books of the Company. The agent may substitute another to act for him. |
Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of
this Note) |
Signature Guarantee*:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-9
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
Mercer International Inc. 7.750% Senior Notes due 2022
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the appropriate box below:
¬Section 4.10
¬Section 4.15
If you want to elect 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:
$
Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of this
Note) |
Signature Guarantee*:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-10
EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for
an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange |
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Amount of decrease in Principal Amount of this Global Note |
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Amount of increase in Principal Amount of this Global Note |
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Principal Amount of this Global Note following such decrease (or increase) |
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Signature of authorized officer of Trustee or Custodian |
* |
This schedule should be included only if the Note is issued in global form. |
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Company address block]
Wells Fargo Bank
DAPS Reorg.
MAC N9303-121
608 2nd Avenue South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
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Re: |
7.750% Senior Notes due 2022 |
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
, (the Transferor) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $
in such Note[s] or interests (the Transfer), to
(the Transferee), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ¨ Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the Securities Act),
and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
2. ¨ Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
B-1
EXHIBIT B
3. ¨ Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor
hereby further certifies that (check one):
(a) ¨ such
Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) ¨ such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) ¨ such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) ¨ such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. ¨ Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)
¨ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
B-2
EXHIBIT B
(b) ¨ Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) ¨ Check if Transfer is
Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
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[Insert Name of Transferor] |
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By: |
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Name: |
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Title: |
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Dated:
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
B-3
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
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1. |
The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
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(a) |
¨ a beneficial interest in the: |
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(i) |
¨ 144A Global Note (CUSIP
), or |
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(ii) |
¨ Regulation S Global Note (CUSIP
), or |
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(iii) |
¨ IAI Global Note (CUSIP
); or |
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(b) |
¨ a Restricted Definitive Note. |
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2. |
After the Transfer the Transferee will hold: |
[CHECK ONE]
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(a) |
¨ a beneficial interest in the: |
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(i) |
¨ 144A Global Note (CUSIP
), or |
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(ii) |
¨ Regulation S Global Note (CUSIP
), or |
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(iii) |
¨ IAI Global Note (CUSIP
); or |
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(iv) |
¨ Unrestricted Global Note (CUSIP
); or |
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(b) |
¨ a Restricted Definitive Note; or |
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(c) |
¨ an Unrestricted Definitive Note, |
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
[Company address block]
Wells Fargo Bank DAPS Reorg.
MAC N9303-121
608 2nd Avenue
South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
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Re: |
7.750% Senior Notes due 2022 |
(CUSIP [ ])
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
, (the Owner) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of
$ in such Note[s] or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the Securities Act),
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is
being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
C-1
EXHIBIT C
(c) ¨ Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owners Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
(d)
¨ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes
(a) ¨
Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a Restricted Definitive Note with
an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture,
the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) ¨ Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, ¨ IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for
the Owners own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
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[Insert Name of Transferor] |
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By: |
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Name: |
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Title: |
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Dated: |
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Signature Guarantee*:
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* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
[Company address block]
Wells Fargo Bank DAPS Reorg.
MAC N9303-121
608 2nd Avenue
South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
|
Re: |
7.750% Senior Notes due 2022 |
Reference is hereby made to the Indenture, dated as of November 26, 2014 (the Indenture), among Mercer
International Inc., as issuer (the Company), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of
$ aggregate principal amount of:
(a) ¨ a beneficial interest in a Global Note, or
(b) ¨ a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the Securities Act).
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold 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 the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a qualified institutional
buyer (as defined therein), (C) 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 and to the Company a signed
letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
D-1
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, 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.
4. 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 are each able to bear the economic risk of our or its investment.
5. We are
acquiring the Notes or beneficial interest therein purchased by us for our own 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.
You and the Company 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 proceedings or official inquiry with respect to the matters covered hereby.
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[Insert Name of Accredited Investor] |
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By: |
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Name: |
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Title: |
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Dated: |
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Signature Guarantee*:
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* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of November 26, 2014 (the Indenture) between Mercer International Inc. (the
Company) and Wells Fargo Bank, National Association, as trustee (the Trustee), (a) the due and punctual payment of the principal of, premium on, if any, and interest and Additional Interest, if any, on the
Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, 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 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 of Notes and to the Trustee pursuant to the Note Guarantee and
the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
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[NAME OF GUARANTOR(S)] |
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By: |
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Name: |
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Title: |
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E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental
Indenture), dated as of , 201 , among
(the Guaranteeing Subsidiary), a subsidiary of
(or its permitted successor), a
corporation (the Company), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and , as
trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the Indenture),
dated as of November 26, 2014, providing for the issuance of 7.750% Senior Notes due 2022 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Note
Guarantee), which constitutes a valid, legally binding obligation of the Company and the Guaranteeing Subsidiary, enforceable against them in accordance with its terms;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The
Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture
or this Supplemental 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. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
F-1
EXHIBIT F
6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
7. EFFECT OF
HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the
date first above written.
Dated:
, 20
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[GUARANTEEING SUBSIDIARY] |
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By: |
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Name: |
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Title: |
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MERCER INTERNATIONAL INC. |
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By: |
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Name: |
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Title: |
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[EXISTING GUARANTORS] |
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By: |
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Name: |
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Title: |
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[TRUSTEE], as Trustee |
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By: |
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Name: |
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Title: |
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F-2
Exhibit 10.1
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
Mercer
International Inc.,
and
Credit Suisse Securities (USA) LLC
Dated as of November 26, 2014
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement) is made and entered into as of November 26, 2014, by and
among Mercer International Inc., a Washington corporation (the Company), and Credit Suisse Securities (USA) LLC, as representative of the several initial purchasers (collectively, the Initial Purchasers), each of which has
agreed to purchase the Companys 7.000% Senior Notes due 2019 (the Initial Notes) on the Closing Date (as defined below), pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated November 18, 2014 (the Purchase Agreement),
among the Company and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of the Initial Notes, including the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Notes, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in
Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have the
following meanings:
Additional Interest: As defined in Section 6 hereto.
Additional Interest Payment Date: With respect to the Initial Notes, each Interest Payment Date.
Advice: As defined in Section 7 hereto.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking institutions or
trust companies located in New York, New York are authorized or obligated to be closed.
Closing Date: The date of
this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed Consummated for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 4(b) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Initial Notes that were tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Period: As defined in Section 5(a) hereof.
Effectiveness Target Date: As defined in Section 6 hereof.
Entitled Securities: Each Note, until the earliest to occur of (a) the date on which such Initial Note has been
exchanged by a Person other than a Broker-Dealer for an Exchange Note in the Exchange Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer of such Initial Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement, (c) the date on which such Initial Note has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement, (d) the date on which such Initial Note is actually sold pursuant to Rule 144 under the Securities Act.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 7.000% Senior Notes due 2019, of the same series under the Indenture as the Initial Notes, to be
issued to Holders in exchange for Entitled Securities pursuant to this Agreement.
Exchange Offer: The registration
by the Company under the Securities Act of the Exchange Notes pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Entitled Securities the opportunity to exchange all such outstanding Entitled
Securities held by such Holders for Exchange Notes in an aggregate principal amount equal to the aggregate principal amount of the Entitled Securities tendered in such exchange offer by such Holders.
Exchange Offer Effectiveness Target Date: As defined in Section 4(a) hereof.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser proposes to sell the Initial Notes to
certain qualified institutional buyers, as such term is defined in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities Act.
FINRA: Financial Industry Regulatory Authority, Inc.
Holders: As defined in Section 2(b) hereof.
2
Indemnified Holder: As defined in Section 9(a) hereof.
Indenture: The Indenture, dated as of November 26, 2014, by and between the Company and Wells Fargo, National
Association, as trustee (the Trustee), pursuant to which the Initial Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial Notes to the Initial Purchasers pursuant to the
terms of the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: June 1 and December 1, commencing June 1, 2015.
Person: An individual, partnership, corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 6 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering of Exchange Notes
pursuant to an Exchange Offer or (b) the registration for resale of Entitled Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Registration Statement: As defined in Section 5(a) hereof.
Suspension Period: As defined in Section 5(a) hereof.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Entitled Securities. The securities entitled to the benefits of this Agreement are the Entitled Securities.
3
(b) Holders of Entitled Securities. A Person is deemed to be a holder of
Entitled Securities (each, a Holder) whenever such Person owns Entitled Securities.
SECTION 3. Authorization of the Exchange Notes. The Company hereby represents, warrants and
covenants to each Initial Purchaser that the Exchange Notes have been duly and validly authorized for issuance by the Company, and when issued and authenticated in accordance with the terms of the Indenture, this Agreement and the Exchange Offer,
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles including limitations and other restrictions on a partys rights to specific performance and indemnification and will be entitled to the
benefits of the Indenture.
SECTION 4. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set
forth in Section 7(a) hereof have been complied with), the Company shall (i) cause to be filed with the Commission the Exchange Offer Registration Statement under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective at the earliest practicable time, but in no event later than 240 days after the Closing Date (or if such 240th day is not a
Business Day, the next succeeding Business Day) (the Exchange Offer Effectiveness Target Date), (iii) in connection with the foregoing, file (A) all pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) if applicable, a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Securities Act and (C),
subject to the proviso in Section 7(c)(x), cause all necessary filings in connection with the registration and qualification of the Exchange Notes to be made under the state securities or blue sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence the Exchange Offer and (v) issue Exchange Notes in exchange for all Initial Notes tendered prior to the
Consummation of the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form permitting registration of the Exchange Notes to be offered in exchange for the Entitled Securities and to permit resales of Initial Notes
held by Broker-Dealers as contemplated by Section 4(c) hereof. Notwithstanding any other provision hereof, the Company shall not be obligated to file a Prospectus with the securities commissions or similar regulatory authority in any of the
provinces or territories of Canada.
(b) The Company shall use its commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business Days from and including the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer to comply in all material
respects with all applicable federal and state securities laws. No securities other than the Exchange Notes (and, at the Companys option, the exchange notes in respect of the Companys 7.750% Senior Notes Due 2022) shall be included in
the Exchange Offer Registration Statement. The Company shall use its commercially reasonable efforts to cause the Exchange Offer to be Consummated within 30 Business Days (or longer if required by applicable securities laws) of the Exchange Offer
Effectiveness Target Date.
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(c) The Company shall indicate in a Plan of Distribution section
contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer which holds Initial Notes that are Entitled Securities and that were acquired for its own account as a result of market-making activities
or other trading activities (other than Entitled Securities acquired directly from the Company), may exchange such Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an underwriter within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes received by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such Plan of Distribution section shall also contain all other information with respect
to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such Plan of Distribution shall not name any such Broker-Dealer or disclose the amount of Initial Notes held by any
such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement.
The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section 7(c) hereof to the extent necessary to ensure that it is available for resales of Initial Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 90 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such 90-day (or shorter as provided in the preceding paragraph) period in order to facilitate such resales.
SECTION 5. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not permitted to file an Exchange Offer Registration Statement or to
Consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 7(a) hereof have been complied with), (ii) for any reason, the Exchange Offer is
not Consummated within 30 Business Days of the Exchange Offer Effectiveness Target Date, or (iii) any Holder of Entitled Securities notifies the Company in writing that (A) such Holder is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Notes acquired directly from the Company or one of its affiliates, then, upon such Holders written request,
the Company shall:
(i) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the Shelf Registration Statement), which Shelf Registration Statement shall provide for resales of all Entitled Securities the
Holders of which shall have provided the information required pursuant to Section 5(b) hereof; and
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(ii) use its commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or before the 240th day after so requested or required pursuant to this Section 5 and to keep it continuously effective until the earliest of (i) the date on which all
Entitled Securities entitled to the benefit of this Section 5(a) have been sold pursuant to the Shelf Registration Statement, (ii) the date on which all Entitled Securities are no longer restricted securities within the meaning
of Rule 144 of the Securities Act and (iii) the date which is one year after the Closing Date, such shortest time period referred to as the Effectiveness Period.
During the Effectiveness Period, the Company shall use its commercially reasonable efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the provisions of Sections 7(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Initial Notes by the Holders of Entitled Securities
entitled to the benefit of this Section 5(a), and to ensure that it conforms in all material respects with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time
to time.
Notwithstanding the foregoing and any other provision hereof, the Company may suspend the availability of the
Shelf Registration Statement, without being required to pay any Additional Interest (as defined below), upon written notice to the Holders (which notice shall be accompanied by an instruction to suspend the use of the Prospectus), for one or more
periods not to exceed 60 consecutive days in any 90-day period, and not to exceed, in the aggregate, 95 days in any 365-day period (each such period, a Suspension Period) if:
(i) an event occurs and is continuing that, in the Companys good faith judgment, would require the
Company to make changes in the Shelf Registration Statement or the Prospectus in order that the Shelf Registration Statement or the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading; and
(ii) the Company reasonably determines that the disclosure of such event at such time would have a material
adverse effect on the business of the Company (and its subsidiaries, if any, taken as a whole).
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(b) Provision by Holders of Certain Information in Connection with the Shelf
Registration Statement. No Holder of Entitled Securities may include any of its Entitled Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 7
Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
SECTION 6. Additional Interest. If (i) the Company fails to file any of the Registration
Statements required by this Agreement on or before the date specified for such filing, if any; (ii) any of the Registration Statements required by this Agreement has not been declared effective by the Commission on or prior to the date
specified for such effectiveness in this Agreement (the Effectiveness Target Date), (iii) the Exchange Offer has not been Consummated within 30 Business Days of the Exchange Offer Effectiveness Target Date or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective (other than for a Suspension Period) without being succeeded within five Business Days by a post-effective amendment to such
Registration Statement that is declared effective (each such event referred to in clauses (i) through (iv), a Registration Default), the Company hereby agrees that the interest rate borne by the Entitled Securities shall be
increased by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.25% per annum at the beginning of each subsequent 90-day period (such increase, Additional
Interest) until all Registration Defaults have been cured, but in no event shall such increase exceed 1.00% per annum. Following the cure of all Registration Defaults relating to any particular Entitled Securities, the interest rate borne
by the relevant Entitled Securities will be reduced to the original interest rate borne by such Entitled Securities; provided, however, that, if after any such reduction in interest rate, a different Registration Default occurs, the interest
rate borne by the relevant Entitled Securities shall again be increased pursuant to the foregoing provisions. The Company shall not be required to pay Additional Interest for more than one Registration Default at a time. The amount of Additional
Interest will be determined on the basis of a 360-day year comprised of twelve 30-day months and the actual number of days on which Additional Interest accrued during such period.
In connection with a Registration Default in respect of a Shelf Registration Statement, notwithstanding anything to the
contrary herein, a Holder will not be entitled to any Additional Interest under this Article 6 if such Holder has not provided all registration information to the Company as required herein at least two Business Days prior to the Effective Date of
the Shelf Registration Statement or any subsequent amendment (with respect to any period subsequent to such amendment and prior to the next amendment in respect of which such information is so provided).
All obligations of the Company set forth in the preceding paragraph to pay Additional Interest that are outstanding with
respect to any Entitled Security at the time such security ceases to be an Entitled Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full.
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SECTION 7. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company shall comply with all of
the provisions of Section 7(c) hereof, shall use its commercially reasonable efforts to effect such exchange so that it permits the sale of Entitled Securities being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement, each Holder of Entitled Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company (within the meaning of Rule 405 of the Securities Act), (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Entitled Securities shall otherwise cooperate in the Companys preparations for the Exchange Offer, including providing all information relating to the Holder required to be included in a Registration
Statement under applicable law. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commissions letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. In connection
with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 7(c) hereof and shall use its commercially reasonable efforts to effect such registration so that it permits the sale of the Entitled Securities
being sold in accordance with the intended method or methods of distribution thereof.
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(c) General Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of Entitled Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit resales of Initial Notes by Broker-Dealers), the
Company shall:
(i) subject to the terms hereof, use its commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite financial statements (including, if required by the Securities Act or any regulation thereunder, its financial statements for the period specified in Section 4 or 5 hereof,
as applicable); upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of
Entitled Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 4 or 5 hereof, as applicable, or such shorter period as will terminate when all Entitled
Securities covered by such Registration Statement have been sold or cease to be Entitled Securities; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders within five Business Days and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Entitled Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Entitled Securities under state securities or blue sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
9
(iv) upon written request, furnish without charge to each of the
Initial Purchasers, each selling Holder named in any Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus, which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least two Business Days, and the
Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus to which an Initial Purchaser of Entitled Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within two Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period) provided, that this clause
(iv) shall not apply to any filing by the Company of any annual report on Form 10-K, quarterly report on Form 10-Q or current report on Form 8-K with respect to matters unrelated to the Entitled Securities and the offering or exchange thereof;
(v) in the case of an Underwritten Registration, make available during normal business hours for
inspection by the Initial Purchasers, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such Initial Purchasers or any of the underwriter(s), all
of its financial and other records, pertinent corporate documents and properties and cause its officers, directors and employees to supply all information reasonably requested by any such Initial Purchaser, underwriter, attorney or accountant in
connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the managing underwriter(s),
if any;
(vi) in the case of a Shelf Registration Statement, if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request
to have included therein, information relating to the Plan of Distribution of the Entitled Securities, information with respect to the principal amount of Entitled Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Entitled Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) upon request,
furnish to each Initial Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);
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(viii) deliver to each selling Holder and each of the
underwriter(s), if any, who is required to deliver a Prospectus in connection with the sale of its Entitled Securities, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the
sale of the Entitled Securities covered by the Prospectus or any amendment or supplement thereto;
(ix)
enter into such agreements (including an underwriting agreement), and make such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Entitled Securities
pursuant to any Shelf Registration Statement contemplated by this Agreement, all to such extent as may reasonably be requested by any Initial Purchaser or by any Holder of Entitled Securities or underwriter and as are reasonably on terms customary
for transactions of such nature in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and if an underwriting agreement is entered into and the registration is an Underwritten Registration, the
Company shall:
(A) furnish to each Initial Purchaser, each selling Holder and each underwriter, if any, in
such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the Consummation of the Exchange Offer or, if applicable, the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case may be, signed by (y) the President or any Vice President and (z) a principal financial or accounting officer of the Company, confirming, as of the date thereof,
the matters set forth in paragraphs (i) and (ii) of Section 5(d) of the Purchase Agreement and such other matters as such parties may reasonably request;
(2) opinions, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, covering such matters as are customarily covered in legal opinions to underwriters in connection with primary underwritten offerings of securities; and
(3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the
Companys independent accountants for the three fiscal years ended December 31, 2013 and all subsequent financial reporting periods, if permitted by applicable accounting standards or pronouncements, in the customary form and covering
matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings, and covering or affirming the matters set forth in the comfort letters delivered pursuant to
Section 5(h) of the Purchase Agreement;
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(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and procedures of Section 9 hereof with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence
compliance with Section 7(c)(xi)(A) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company pursuant to this Section 7(c)(xi), if any.
If at any time the representations and warranties contemplated in Section 7(c)(xi)(A)(1) hereof cease to
be true and correct, the Company shall so advise the Initial Purchasers and the underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall confirm such advice in writing;
(x) prior to any public offering of Entitled Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Entitled Securities under the state securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any,
may reasonably request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Entitled Securities covered by the Shelf Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a foreign corporation where it is not then so qualified or to take any action that would subject it to the service of process in suits or to taxation, in any jurisdiction where it is not then
so subject;
(xi) shall issue, upon the request of any Holder of Initial Notes covered by the Shelf
Registration Statement, Exchange Notes having an aggregate principal amount equal to the aggregate principal amount of Initial Notes surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Notes, if
in certificated form, to be registered in the name of such Holder or in the name of the purchaser(s) of such Exchange Notes, as the case may be; in return, the Initial Notes held by such Holder, if in certificated form, shall be surrendered to the
Company for cancellation;
(xii) cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing Entitled Securities to be sold and not bearing any restrictive legends; and enable such Entitled Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Entitled Securities made by such Holders or underwriter(s);
(xiii) use its commercially reasonable efforts to cause the Entitled Securities covered by the Registration
Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Entitled Securities,
subject to the proviso contained in Section 7(c)(xii) hereof;
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(xiv) if any fact or event contemplated by
Section 7(c)(iii)(D) hereof shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Entitled Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading;
(xv) provide a CUSIP number for all Exchange Notes not later than the effective date of the Registration
Statement covering such Exchange Notes and provide the Trustee under the Indenture with printed certificates for such Exchange Notes which are in a form eligible for deposit with the Depository Trust Company and take all other action necessary to
ensure that all such Securities are eligible for deposit with the Depository Trust Company;
(xvi)
cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be retained in accordance with the rules and regulations of the FINRA;
(xvii) otherwise use its commercially reasonable efforts to comply in all material respects with all applicable
rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 under the Securities Act (which need not be audited) for
the twelve-month period (A) commencing at the end of any fiscal quarter in which Entitled Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Companys first fiscal quarter commencing after the effective date of the Registration Statement;
(xvii) cause the Indenture to be qualified under the Trust Indenture Act not later than the effective date of
the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Exchange Notes to effect such changes to the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the Trust Indenture Act; and to execute and use its commercially reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so qualified in a timely manner;
(xviii)
cause all Exchange Notes covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in
aggregate principal amount of Initial Notes or the managing underwriter(s), if any; and
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Each Holder agrees by acquisition of a Entitled Security that, upon
receipt of any notice from the Company of a Suspension Period or the existence of any fact of the kind described in Section 7(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Entitled Securities pursuant to the
applicable Registration Statement until such Holders receipt of the copies of the supplemented or amended Prospectus contemplated by Section 7(c)(xvi) hereof, or until it is advised in writing (the Advice) by the Company that
the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Companys expense) all copies, other than permanent file copies then in such Holders possession, of the Prospectus covering such Entitled Securities that was current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 4 or 5 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 7(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by
Section 7(c)(xvi) hereof or shall have received the Advice; provided, however, that no such extension shall be taken into account, except in connection with a Suspension Period, in determining whether Additional Interest is due pursuant
to Section 6 hereof or the amount of such Additional Interest, it being agreed that the Companys option to suspend use of a Registration Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of
Section 6 hereof.
SECTION 8. Registration Expenses.
(a) All expenses incident to the Companys performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with the FINRA (and, if applicable,
the fees and expenses of any qualified independent underwriter and its counsel that may be required by the rules and regulations of the FINRA)); (ii) all fees and expenses of compliance with federal securities and state securities
or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of the Companys counsel and, subject to Section 8(b) hereof, the Holders of Entitled Securities; (v) all application and filing fees in connection with listing the Exchange Notes on a securities exchange or automated
quotation system pursuant to the requirements thereof; and (vi) all fees and disbursements of the Companys independent certified public accountants (including the expenses of any special audit and comfort letters required by or incident
to such performance).
The Company will, in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by it.
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(b) In connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement), the Company will reimburse the Initial Purchasers and the Holders of Entitled Securities being tendered in the Exchange Offer and/or
resold pursuant to the Plan of Distribution contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be such counsel as may be chosen by the Holders of a majority in principal amount of the Entitled Securities for whose benefit such Registration Statement is being prepared.
SECTION 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a controlling person) and
(iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
Indemnified Holder), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses (or actions in respect thereof) (including, without limitation, and as incurred, reimbursement of all
reasonable costs of investigating, or defending any claim or action, or any investigation or proceeding by any governmental agency or body, including the reasonable fees and expenses of counsel to any Indemnified Holder), joint or several, directly
or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by an
untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders expressly for use therein.
This indemnity agreement shall be in addition to any liability which the Company may otherwise have.
In case any
action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company, such Indemnified
Holder (or the Indemnified Holder controlled by such controlling person) shall promptly notify the Company in writing; provided, however, that the failure to give such notice shall not relieve any of the Company of its obligations pursuant to
this Agreement. Such Indemnified Holder shall have the right to employ its own counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by the Company (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). Notwithstanding the foregoing, the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in
the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders. The Company shall be liable for any settlement of any such action or proceeding effected with the Companys prior written consent, which consent shall not be withheld unreasonably, and the
Company agrees to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any settlement of any action effected with the Companys written consent. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or proceeding.
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(b) Each Holder of Entitled Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company and
the officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company to each of the Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement or Prospectus. In case any action or proceeding shall be brought against the Company or its directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder of Entitled Securities, such Holder shall have the rights and duties given the Company, and the Company, its directors and officers and such controlling Person shall
have the rights and duties given to each Holder, in each case, by the preceding paragraph.
(c) If the indemnification
provided for in this Section 9 is unavailable to an indemnified party under Section 9(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments,
actions or expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the Company shall be deemed
to be equal to its total gross proceeds from the Initial Placement), the amount of Additional Interest which did not become payable as a result of the filing of the Registration Statement resulting in such losses, claims, damages, liabilities,
judgments actions or expenses, and such Registration Statement, or if such allocation is not permitted by applicable law, the relative fault of the Company, on the one hand, and the Holders, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Indemnified Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the
Indemnified Holders, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 9(a) hereof, any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
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Each of the Company and the Holders of Entitled Securities agrees that it would
not be just and equitable if contribution pursuant to this Section 9(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, none of the Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total discount received by such Holder with respect to
the Initial Notes exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders obligations to contribute pursuant to this Section 9(c) are
several in proportion to the respective principal amount of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 10. Rule 144A. The Company hereby agrees with each Holder, for so long as any Entitled
Securities remain outstanding, to make available to any Holder or beneficial owner of Entitled Securities in connection with any sale thereof and any prospective purchaser of such Entitled Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Entitled Securities pursuant to Rule 144A under the Securities Act.
SECTION 11. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holders Entitled Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements.
SECTION 12. Selection of Underwriters. The Holders of Entitled Securities covered by the
Shelf Registration Statement who desire to do so may sell such Entitled Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker(s) and managing underwriter(s) that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the Entitled Securities included in such offering; provided, however, that such investment banker(s) and managing underwriter(s) must be reasonably satisfactory to the
Company; provided further, that if the Company is conducting a primary issuance of securities in such Underwritten Offering, the Company shall have sole discretion in such selection.
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SECTION 13. Miscellaneous.
(a) Remedies. The Company hereby agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Companys securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless the Company has (i) in the case of Section 6 hereof and this Section 13(c)(i), obtained the
written consent of Holders of all outstanding Entitled Securities and (ii) in the case of all other provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Entitled Securities (excluding
any Entitled Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant
to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount
of Entitled Securities being tendered or registered; provided, however, that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of such
Initial Purchaser with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective.
(d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing
by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, facsimile, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy
to the Registrar under the Indenture; and
(ii) if to the Company:
Mercer International Inc.
Suite 1120, 700 West Pender Street
Vancouver, British Columbia
Canada, V6C 1G8
Facsimile: (604) 684-1094
Attention: Chief Financial Officer
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With a copy to:
Sangra Moller LLP
Barristers & Solicitors
1000 Cathedral Place
925 West Georgia Street
Vancouver, British Columbia
Canada, V6B 3L2
Facsimile: (604) 669-8803
Attention: Harjit Sangra
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if faxed; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including, without limitation, and without the need for an express assignment or assumption, subsequent Holders of Entitled
Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Entitled Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that
any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement.
This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Entitled Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such subject matter.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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Mercer International Inc. |
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By: |
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/s/ David M. Gandossi |
Name: |
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David M. Gandossi |
Title: |
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Secretary and Chief Financial Officer |
Registration Rights
Agreement - 2019 Notes
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written:
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Credit Suisse Securities (USA) LLC |
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By: |
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/s/ Michael Speller |
Name: |
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Michael Speller |
Title: |
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Managing Director |
Acting for themselves and on behalf of the
several Initial Purchasers
Registration Rights
Agreement - 2019 Notes
Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
Mercer
International Inc.,
and
Credit Suisse Securities (USA) LLC
Dated as of November 26, 2014
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement) is made and entered into as of November 26, 2014, by and
among Mercer International Inc., a Washington corporation (the Company), and Credit Suisse Securities (USA) LLC, as representative of the several initial purchasers (collectively, the Initial Purchasers), each of which has
agreed to purchase the Companys 7.750% Senior Notes due 2022 (the Initial Notes) on the Closing Date (as defined below), pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated November 18, 2014 (the Purchase Agreement),
among the Company and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of the Initial Notes, including the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Notes, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in
Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have the
following meanings:
Additional Interest: As defined in Section 6 hereto.
Additional Interest Payment Date: With respect to the Initial Notes, each Interest Payment Date.
Advice: As defined in Section 7 hereto.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking institutions or
trust companies located in New York, New York are authorized or obligated to be closed.
Closing Date: The date of
this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed Consummated for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 4(b) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Initial Notes that were tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Period: As defined in Section 5(a) hereof.
Effectiveness Target Date: As defined in Section 6 hereof.
Entitled Securities: Each Note, until the earliest to occur of (a) the date on which such Initial Note has been
exchanged by a Person other than a Broker-Dealer for an Exchange Note in the Exchange Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer of such Initial Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement, (c) the date on which such Initial Note has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement, (d) the date on which such Initial Note is actually sold pursuant to Rule 144 under the Securities Act.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 7.750% Senior Notes due 2022, of the same series under the Indenture as the Initial Notes, to be
issued to Holders in exchange for Entitled Securities pursuant to this Agreement.
Exchange Offer: The registration
by the Company under the Securities Act of the Exchange Notes pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Entitled Securities the opportunity to exchange all such outstanding Entitled
Securities held by such Holders for Exchange Notes in an aggregate principal amount equal to the aggregate principal amount of the Entitled Securities tendered in such exchange offer by such Holders.
Exchange Offer Effectiveness Target Date: As defined in Section 4(a) hereof.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser proposes to sell the Initial Notes to
certain qualified institutional buyers, as such term is defined in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities Act.
FINRA: Financial Industry Regulatory Authority, Inc.
Holders: As defined in Section 2(b) hereof.
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Indemnified Holder: As defined in Section 9(a) hereof.
Indenture: The Indenture, dated as of November 26, 2014, by and between the Company and Wells Fargo, National
Association, as trustee (the Trustee), pursuant to which the Initial Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial Notes to the Initial Purchasers pursuant to the
terms of the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: June 1 and December 1, commencing June 1, 2015.
Person: An individual, partnership, corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 6 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering of Exchange Notes
pursuant to an Exchange Offer or (b) the registration for resale of Entitled Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Registration Statement: As defined in Section 5(a) hereof.
Suspension Period: As defined in Section 5(a) hereof.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Entitled Securities. The securities entitled to the benefits of this Agreement are the Entitled Securities.
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(b) Holders of Entitled Securities. A Person is deemed to be a holder of
Entitled Securities (each, a Holder) whenever such Person owns Entitled Securities.
SECTION 3. Authorization of the Exchange Notes. The Company hereby represents, warrants and
covenants to each Initial Purchaser that the Exchange Notes have been duly and validly authorized for issuance by the Company, and when issued and authenticated in accordance with the terms of the Indenture, this Agreement and the Exchange Offer,
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles including limitations and other restrictions on a partys rights to specific performance and indemnification and will be entitled to the
benefits of the Indenture.
SECTION 4. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set
forth in Section 7(a) hereof have been complied with), the Company shall (i) cause to be filed with the Commission the Exchange Offer Registration Statement under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective at the earliest practicable time, but in no event later than 240 days after the Closing Date (or if such 240th day is not a
Business Day, the next succeeding Business Day) (the Exchange Offer Effectiveness Target Date), (iii) in connection with the foregoing, file (A) all pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) if applicable, a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Securities Act and (C),
subject to the proviso in Section 7(c)(x), cause all necessary filings in connection with the registration and qualification of the Exchange Notes to be made under the state securities or blue sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence the Exchange Offer and (v) issue Exchange Notes in exchange for all Initial Notes tendered prior to the
Consummation of the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form permitting registration of the Exchange Notes to be offered in exchange for the Entitled Securities and to permit resales of Initial Notes
held by Broker-Dealers as contemplated by Section 4(c) hereof. Notwithstanding any other provision hereof, the Company shall not be obligated to file a Prospectus with the securities commissions or similar regulatory authority in any of the
provinces or territories of Canada.
(b) The Company shall use its commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business Days from and including the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer to comply in all material
respects with all applicable federal and state securities laws. No securities other than the Exchange Notes (and, at the Companys option, the exchange notes in respect of the Companys 7.000% Senior Notes due 2019) shall be included in
the Exchange Offer Registration Statement. The Company shall use its commercially reasonable efforts to cause the Exchange Offer to be Consummated within 30 Business Days (or longer if required by applicable securities laws) of the Exchange Offer
Effectiveness Target Date.
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(c) The Company shall indicate in a Plan of Distribution section
contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer which holds Initial Notes that are Entitled Securities and that were acquired for its own account as a result of market-making activities
or other trading activities (other than Entitled Securities acquired directly from the Company), may exchange such Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an underwriter within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes received by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such Plan of Distribution section shall also contain all other information with respect
to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such Plan of Distribution shall not name any such Broker-Dealer or disclose the amount of Initial Notes held by any
such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement.
The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section 7(c) hereof to the extent necessary to ensure that it is available for resales of Initial Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 90 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such 90-day (or shorter as provided in the preceding paragraph) period in order to facilitate such resales.
SECTION 5. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not permitted to file an Exchange Offer Registration Statement or to
Consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 7(a) hereof have been complied with), (ii) for any reason, the Exchange Offer is
not Consummated within 30 Business Days of the Exchange Offer Effectiveness Target Date, or (iii) any Holder of Entitled Securities notifies the Company in writing that (A) such Holder is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Notes acquired directly from the Company or one of its affiliates, then, upon such Holders written request,
the Company shall:
(i) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the Shelf Registration Statement), which Shelf Registration Statement shall provide for resales of all Entitled Securities the
Holders of which shall have provided the information required pursuant to Section 5(b) hereof; and
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(ii) use its commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or before the 240th day after so requested or required pursuant to this Section 5 and to keep it continuously effective until the earliest of (i) the date on which all
Entitled Securities entitled to the benefit of this Section 5(a) have been sold pursuant to the Shelf Registration Statement, (ii) the date on which all Entitled Securities are no longer restricted securities within the meaning
of Rule 144 of the Securities Act and (iii) the date which is one year after the Closing Date, such shortest time period referred to as the Effectiveness Period.
During the Effectiveness Period, the Company shall use its commercially reasonable efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the provisions of Sections 7(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Initial Notes by the Holders of Entitled Securities
entitled to the benefit of this Section 5(a), and to ensure that it conforms in all material respects with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time
to time.
Notwithstanding the foregoing and any other provision hereof, the Company may suspend the availability of the
Shelf Registration Statement, without being required to pay any Additional Interest (as defined below), upon written notice to the Holders (which notice shall be accompanied by an instruction to suspend the use of the Prospectus), for one or more
periods not to exceed 60 consecutive days in any 90-day period, and not to exceed, in the aggregate, 95 days in any 365-day period (each such period, a Suspension Period) if:
(i) an event occurs and is continuing that, in the Companys good faith judgment, would require the
Company to make changes in the Shelf Registration Statement or the Prospectus in order that the Shelf Registration Statement or the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading; and
(ii) the Company reasonably determines that the disclosure of such event at such time would have a material
adverse effect on the business of the Company (and its subsidiaries, if any, taken as a whole).
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(b) Provision by Holders of Certain Information in Connection with the Shelf
Registration Statement. No Holder of Entitled Securities may include any of its Entitled Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 7
Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
SECTION 6. Additional Interest. If (i) the Company fails to file any of the
Registration Statements required by this Agreement on or before the date specified for such filing, if any; (ii) any of the Registration Statements required by this Agreement has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in this Agreement (the Effectiveness Target Date), (iii) the Exchange Offer has not been Consummated within 30 Business Days of the Exchange Offer Effectiveness Target Date or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective (other than for a Suspension Period) without being succeeded within five Business Days by a post-effective amendment to such
Registration Statement that is declared effective (each such event referred to in clauses (i) through (iv), a Registration Default), the Company hereby agrees that the interest rate borne by the Entitled Securities shall be
increased by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.25% per annum at the beginning of each subsequent 90-day period (such increase, Additional
Interest) until all Registration Defaults have been cured, but in no event shall such increase exceed 1.00% per annum. Following the cure of all Registration Defaults relating to any particular Entitled Securities, the interest rate borne
by the relevant Entitled Securities will be reduced to the original interest rate borne by such Entitled Securities; provided, however, that, if after any such reduction in interest rate, a different Registration Default occurs, the interest
rate borne by the relevant Entitled Securities shall again be increased pursuant to the foregoing provisions. The Company shall not be required to pay Additional Interest for more than one Registration Default at a time. The amount of Additional
Interest will be determined on the basis of a 360-day year comprised of twelve 30-day months and the actual number of days on which Additional Interest accrued during such period.
In connection with a Registration Default in respect of a Shelf Registration Statement, notwithstanding anything to the
contrary herein, a Holder will not be entitled to any Additional Interest under this Article 6 if such Holder has not provided all registration information to the Company as required herein at least two Business Days prior to the Effective Date of
the Shelf Registration Statement or any subsequent amendment (with respect to any period subsequent to such amendment and prior to the next amendment in respect of which such information is so provided).
All obligations of the Company set forth in the preceding paragraph to pay Additional Interest that are outstanding with
respect to any Entitled Security at the time such security ceases to be an Entitled Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full.
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SECTION 7. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company shall comply with all of
the provisions of Section 7(c) hereof, shall use its commercially reasonable efforts to effect such exchange so that it permits the sale of Entitled Securities being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement, each Holder of Entitled Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company (within the meaning of Rule 405 of the Securities Act), (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Entitled Securities shall otherwise cooperate in the Companys preparations for the Exchange Offer, including providing all information relating to the Holder required to be included in a Registration
Statement under applicable law. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commissions letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. In connection
with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 7(c) hereof and shall use its commercially reasonable efforts to effect such registration so that it permits the sale of the Entitled Securities
being sold in accordance with the intended method or methods of distribution thereof.
(c) General Provisions. In
connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Entitled Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit
resales of Initial Notes by Broker-Dealers), the Company shall:
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(i) subject to the terms hereof, use its commercially reasonable
efforts to keep such Registration Statement continuously effective and provide all requisite financial statements (including, if required by the Securities Act or any regulation thereunder, its financial statements for the period specified in
Section 4 or 5 hereof, as applicable); upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective
and usable for resale of Entitled Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 4 or 5 hereof, as applicable, or such shorter period as will
terminate when all Entitled Securities covered by such Registration Statement have been sold or cease to be Entitled Securities; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders within five Business Days and, if
requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Entitled Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Entitled Securities under state securities or blue sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible
time;
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(iv) upon written request, furnish without charge to each of the
Initial Purchasers, each selling Holder named in any Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus, which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least two Business Days, and the
Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus to which an Initial Purchaser of Entitled Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within two Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period) provided, that this clause
(iv) shall not apply to any filing by the Company of any annual report on Form 10-K, quarterly report on Form 10-Q or current report on Form 8-K with respect to matters unrelated to the Entitled Securities and the offering or exchange thereof;
(v) in the case of an Underwritten Registration, make available during normal business hours for
inspection by the Initial Purchasers, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such Initial Purchasers or any of the underwriter(s), all
of its financial and other records, pertinent corporate documents and properties and cause its officers, directors and employees to supply all information reasonably requested by any such Initial Purchaser, underwriter, attorney or accountant in
connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the managing underwriter(s),
if any;
(vi) in the case of a Shelf Registration Statement, if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request
to have included therein, information relating to the Plan of Distribution of the Entitled Securities, information with respect to the principal amount of Entitled Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Entitled Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) upon request,
furnish to each Initial Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);
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(viii) deliver to each selling Holder and each of the
underwriter(s), if any, who is required to deliver a Prospectus in connection with the sale of its Entitled Securities, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the
sale of the Entitled Securities covered by the Prospectus or any amendment or supplement thereto;
(ix)
enter into such agreements (including an underwriting agreement), and make such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Entitled Securities
pursuant to any Shelf Registration Statement contemplated by this Agreement, all to such extent as may reasonably be requested by any Initial Purchaser or by any Holder of Entitled Securities or underwriter and as are reasonably on terms customary
for transactions of such nature in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and if an underwriting agreement is entered into and the registration is an Underwritten Registration, the
Company shall:
(A) furnish to each Initial Purchaser, each selling Holder and each underwriter, if any, in
such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the Consummation of the Exchange Offer or, if applicable, the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case may be, signed by (y) the President or any Vice President and (z) a principal financial or accounting officer of the Company, confirming, as of the date thereof,
the matters set forth in paragraphs (i) and (ii) of Section 5(d) of the Purchase Agreement and such other matters as such parties may reasonably request;
(2) opinions, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, covering such matters as are customarily covered in legal opinions to underwriters in connection with primary underwritten offerings of securities; and
(3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the
Companys independent accountants for the three fiscal years ended December 31, 2013 and all subsequent financial reporting periods, if permitted by applicable accounting standards or pronouncements, in the customary form and covering
matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings, and covering or affirming the matters set forth in the comfort letters delivered pursuant to
Section 5(h) of the Purchase Agreement;
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(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and procedures of Section 9 hereof with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence
compliance with Section 7(c)(xi)(A) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company pursuant to this Section 7(c)(xi), if any.
If at any time the representations and warranties contemplated in Section 7(c)(xi)(A)(1) hereof cease to
be true and correct, the Company shall so advise the Initial Purchasers and the underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall confirm such advice in writing;
(x) prior to any public offering of Entitled Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Entitled Securities under the state securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any,
may reasonably request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Entitled Securities covered by the Shelf Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where it is not then so qualified or to take any action that would subject it to the service of process in suits or to taxation, in any jurisdiction where it is not then so
subject;
(xi) shall issue, upon the request of any Holder of Initial Notes covered by the Shelf
Registration Statement, Exchange Notes having an aggregate principal amount equal to the aggregate principal amount of Initial Notes surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Notes, if
in certificated form, to be registered in the name of such Holder or in the name of the purchaser(s) of such Exchange Notes, as the case may be; in return, the Initial Notes held by such Holder, if in certificated form, shall be surrendered to the
Company for cancellation;
(xii) cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing Entitled Securities to be sold and not bearing any restrictive legends; and enable such Entitled Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Entitled Securities made by such Holders or underwriter(s);
(xiii) use its commercially reasonable efforts to cause the Entitled Securities covered by the Registration
Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Entitled Securities,
subject to the proviso contained in Section 7(c)(xii) hereof;
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(xiv) if any fact or event contemplated by
Section 7(c)(iii)(D) hereof shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Entitled Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading;
(xv) provide a CUSIP number for all Exchange Notes not later than the effective date of the Registration
Statement covering such Exchange Notes and provide the Trustee under the Indenture with printed certificates for such Exchange Notes which are in a form eligible for deposit with the Depository Trust Company and take all other action necessary to
ensure that all such Securities are eligible for deposit with the Depository Trust Company;
(xvi)
cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be retained in accordance with the rules and regulations of the FINRA;
(xvii) otherwise use its commercially reasonable efforts to comply in all material respects with all applicable
rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 under the Securities Act (which need not be audited) for
the twelve-month period (A) commencing at the end of any fiscal quarter in which Entitled Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Companys first fiscal quarter commencing after the effective date of the Registration Statement;
(xvii) cause the Indenture to be qualified under the Trust Indenture Act not later than the effective date of
the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Exchange Notes to effect such changes to the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the Trust Indenture Act; and to execute and use its commercially reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so qualified in a timely manner;
(xviii)
cause all Exchange Notes covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in
aggregate principal amount of Initial Notes or the managing underwriter(s), if any; and
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Each Holder agrees by acquisition of a Entitled Security that, upon
receipt of any notice from the Company of a Suspension Period or the existence of any fact of the kind described in Section 7(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Entitled Securities pursuant to the
applicable Registration Statement until such Holders receipt of the copies of the supplemented or amended Prospectus contemplated by Section 7(c)(xvi) hereof, or until it is advised in writing (the Advice) by the Company that
the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Companys expense) all copies, other than permanent file copies then in such Holders possession, of the Prospectus covering such Entitled Securities that was current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 4 or 5 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 7(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by
Section 7(c)(xvi) hereof or shall have received the Advice; provided, however, that no such extension shall be taken into account, except in connection with a Suspension Period, in determining whether Additional Interest is due pursuant
to Section 6 hereof or the amount of such Additional Interest, it being agreed that the Companys option to suspend use of a Registration Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of
Section 6 hereof.
SECTION 8. Registration Expenses.
(a) All expenses incident to the Companys performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with the FINRA (and, if applicable,
the fees and expenses of any qualified independent underwriter and its counsel that may be required by the rules and regulations of the FINRA)); (ii) all fees and expenses of compliance with federal securities and state securities
or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of the Companys counsel and, subject to Section 8(b) hereof, the Holders of Entitled Securities; (v) all application and filing fees in connection with listing the Exchange Notes on a securities exchange or automated
quotation system pursuant to the requirements thereof; and (vi) all fees and disbursements of the Companys independent certified public accountants (including the expenses of any special audit and comfort letters required by or incident
to such performance).
The Company will, in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by it.
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(b) In connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement), the Company will reimburse the Initial Purchasers and the Holders of Entitled Securities being tendered in the Exchange Offer and/or
resold pursuant to the Plan of Distribution contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be such counsel as may be chosen by the Holders of a majority in principal amount of the Entitled Securities for whose benefit such Registration Statement is being prepared.
SECTION 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a controlling person) and
(iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
Indemnified Holder), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses (or actions in respect thereof) (including, without limitation, and as incurred, reimbursement of all
reasonable costs of investigating, or defending any claim or action, or any investigation or proceeding by any governmental agency or body, including the reasonable fees and expenses of counsel to any Indemnified Holder), joint or several, directly
or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by an
untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders expressly for use therein.
This indemnity agreement shall be in addition to any liability which the Company may otherwise have.
In case any
action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company, such Indemnified
Holder (or the Indemnified Holder controlled by such controlling person) shall promptly notify the Company in writing; provided, however, that the failure to give such notice shall not relieve any of the Company of its obligations pursuant to
this Agreement. Such Indemnified Holder shall have the right to employ its own counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by the Company (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). Notwithstanding the foregoing, the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in
the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders. The Company shall be liable for any settlement of any such action or proceeding effected with the Companys prior written consent, which consent shall not be withheld unreasonably, and the
Company agrees to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any settlement of any action effected with the Companys written consent. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or proceeding.
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(b) Each Holder of Entitled Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company and
the officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company to each of the Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement or Prospectus. In case any action or proceeding shall be brought against the Company or its directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder of Entitled Securities, such Holder shall have the rights and duties given the Company, and the Company, its directors and officers and such controlling Person shall
have the rights and duties given to each Holder, in each case, by the preceding paragraph.
(c) If the indemnification
provided for in this Section 9 is unavailable to an indemnified party under Section 9(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments,
actions or expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the Company shall be deemed
to be equal to its total gross proceeds from the Initial Placement), the amount of Additional Interest which did not become payable as a result of the filing of the Registration Statement resulting in such losses, claims, damages, liabilities,
judgments actions or expenses, and such Registration Statement, or if such allocation is not permitted by applicable law, the relative fault of the Company, on the one hand, and the Holders, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Indemnified Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the
Indemnified Holders, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 9(a) hereof, any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
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Each of the Company and the Holders of Entitled Securities agrees that it would
not be just and equitable if contribution pursuant to this Section 9(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, none of the Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total discount received by such Holder with respect to
the Initial Notes exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders obligations to contribute pursuant to this Section 9(c) are
several in proportion to the respective principal amount of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 10. Rule 144A. The Company hereby agrees with each Holder, for so long as any Entitled
Securities remain outstanding, to make available to any Holder or beneficial owner of Entitled Securities in connection with any sale thereof and any prospective purchaser of such Entitled Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Entitled Securities pursuant to Rule 144A under the Securities Act.
SECTION 11. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holders Entitled Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements.
SECTION 12. Selection of Underwriters. The Holders of Entitled Securities covered by the
Shelf Registration Statement who desire to do so may sell such Entitled Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker(s) and managing underwriter(s) that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the Entitled Securities included in such offering; provided, however, that such investment banker(s) and managing underwriter(s) must be reasonably satisfactory to the
Company; provided further, that if the Company is conducting a primary issuance of securities in such Underwritten Offering, the Company shall have sole discretion in such selection.
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SECTION 13. Miscellaneous.
(a) Remedies. The Company hereby agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Companys securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless the Company has (i) in the case of Section 6 hereof and this Section 13(c)(i), obtained the
written consent of Holders of all outstanding Entitled Securities and (ii) in the case of all other provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Entitled Securities (excluding
any Entitled Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant
to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount
of Entitled Securities being tendered or registered; provided, however, that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of such
Initial Purchaser with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective.
(d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing
by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, facsimile, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy
to the Registrar under the Indenture; and
(ii) if to the Company:
Mercer International Inc.
Suite 1120, 700 West Pender Street
Vancouver, British Columbia
Canada, V6C 1G8
Facsimile: (604) 684-1094
Attention: Chief Financial Officer
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With a copy to:
Sangra Moller LLP
Barristers & Solicitors
1000 Cathedral Place
925 West Georgia Street
Vancouver, British Columbia
Canada, V6B 3L2
Facsimile: (604) 669-8803
Attention: Harjit Sangra
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if faxed; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including, without limitation, and without the need for an express assignment or assumption, subsequent Holders of Entitled
Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Entitled Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that
any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement.
This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Entitled Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such subject matter.
[Signature pages follow]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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Mercer International Inc. |
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By: |
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/s/ David M. Gandossi |
Name: |
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David M. Gandossi |
Title: |
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Secretary and Chief Financial Officer |
Registration Rights
Agreement - 2022 Notes
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written:
Credit Suisse Securities (USA) LLC
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By: |
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/s/ Michael Speller |
Name: |
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Michael Speller |
Title: |
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Managing Director |
Acting for themselves and on behalf of the
several Initial Purchasers
Registration Rights
Agreement - 2022 Notes
Exhibit 10.3
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CLIFFORD CHANCE
DEUTSCHLAND LLP |
Execution Copy
ZELLSTOFF STENDAL GMBH
as
Borrower
UNICREDIT BANK AG
as Bookrunner and Mandated Lead Arranger, Agent, Security Agent
and an Original Lender
CREDIT
SUISSE AG, LONDON BRANCH
as an Original Lender
ROYAL BANK OF CANADA
as an
Original Lender
BARCLAYS BANK PLC
as an Original Lender
REVOLVING
CREDIT FACILITY AGREEMENT
IN THE AMOUNT OF
EUR
75,000,000
CLIFFORD CHANCE DEUTSCHLAND LLP IS A LIMITED LIABILITY PARTNERSHIP WITH REGISTERED OFFICE AT 10 UPPER BANK STREET, LONDON E14 5JJ, REGISTERED
IN ENGLAND AND WALES UNDER OC393460. A BRANCH OFFICE OF THE PARTNERSHIP IS REGISTERED IN THE PARTNERSHIP REGISTER AT FRANKFURT AM MAIN LOCAL COURT UNDER PR 2189.
CONTENTS
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Clause |
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Page |
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1. |
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Definitions and Interpretation |
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3 |
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2. |
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The Facility |
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23 |
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3. |
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Purpose |
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23 |
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4. |
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Conditions Precedent |
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24 |
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5. |
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Utilisation - Loans |
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25 |
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6. |
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Utilisation - Bank Guarantees |
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26 |
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7. |
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Bank Guarantees |
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28 |
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8. |
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Repayment |
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31 |
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9. |
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Prepayment and Cancellation |
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31 |
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10. |
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Interest |
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34 |
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11. |
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Interest Periods |
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35 |
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12. |
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Changes to the Calculation of Interest |
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35 |
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13. |
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Fees |
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37 |
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14. |
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Tax Gross Up and Indemnities |
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38 |
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15. |
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Increased Costs |
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43 |
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16. |
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Other Indemnities |
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44 |
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17. |
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Mitigation by the Lenders |
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45 |
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18. |
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Costs and Expenses |
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45 |
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19. |
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Representations |
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47 |
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20. |
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Information Undertakings |
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50 |
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21. |
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Financial Covenants |
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55 |
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22. |
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General Undertakings |
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57 |
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23. |
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Events of Default |
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62 |
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24. |
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Changes to the Lenders |
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68 |
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25. |
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Confidentiality |
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72 |
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26. |
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Changes to the Borrower |
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72 |
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27. |
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Role of the Agent, the Arranger, any Issuing Bank and others |
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73 |
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28. |
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Conduct of Business by the Finance Parties |
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83 |
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29. |
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Sharing among the Finance Parties |
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84 |
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30. |
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Payment Mechanics |
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86 |
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31. |
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Set-off |
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88 |
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32. |
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Notices |
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88 |
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33. |
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Calculations and Certificates |
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90 |
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34. |
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Partial Invalidity |
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91 |
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- i -
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35. |
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Remedies and Waivers |
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91 |
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36. |
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Amendments and Waivers |
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91 |
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37. |
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Conclusion of this Agreement (Vertragsschluss) |
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92 |
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38. |
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Statute of Limitations (Verjährung) |
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93 |
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39. |
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Governing law |
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94 |
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40. |
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Jurisdiction |
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94 |
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Schedule 1 The Original Lenders |
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95 |
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Schedule 2 Conditions Precedent |
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96 |
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Schedule 3 Utilisation Request |
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99 |
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Schedule 4 Form of Assignment and Assumption Certificate |
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100 |
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Schedule 5 Form of Compliance Certificate |
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103 |
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Schedule 6 Existing Security |
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104 |
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Schedule 7 Existing Indebtedness of ZSG Group |
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105 |
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Schedule 8 Timetables |
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106 |
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Schedule 9 Insurances |
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107 |
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Schedule 10 Form of Interest Payment Notice |
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108 |
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Schedule 11 Shareholder Loan Agreements |
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109 |
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- ii -
THIS AGREEMENT is made on 25 November 2014
BETWEEN:
(1) |
ZELLSTOFF STENDAL GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated, organised and validly
existing under the laws of the Federal Republic of Germany, having its office at Goldbecker Strasse 1, 39596 Arneburg, Federal Republic of Germany and registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Stendal, number HRB 2446 (the Borrower); |
(2) |
UNICREDIT BANK AG, a stock corporation (Aktiengesellschaft) incorporated, organised and validly existing under the laws of the
Federal Republic of Germany, having its office at Arabellastrasse 14, 81925 Munich, Federal Republic of Germany and registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Munich, number HRB 42148 as
bookrunner and mandated lead arranger (the Arranger); |
(3) |
UNICREDIT BANK AG (the Agent and Security Agent); |
(4) |
UNICREDIT BANK AG (an Original Lender); |
(5) |
CREDIT SUISSE AG, LONDON BRANCH, having its office at One Cabot Square, London E14 4QJ (an Original Lender);
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(6) |
ROYAL BANK OF CANADA, having its office at Riverbank House, 2 Swan Lane, London, EC4R 3BF (an Original Lender); and
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(7) |
BARCLAYS BANK PLC, having its office at 5 The North Colonnade, Canary Wharf, London E14 4BB, United Kingdom (an Original
Lender) |
(the entities under (4) to (7) are collectively referred to as the Original
Lenders and together with the entities under (1) to (3) as the Parties).
WHEREAS
(A) |
The Borrower operates a 660,000 tonnes per annum bleached softwood kraft pulp mill located in Arneburg, Saxony-Anhalt, Federal Republic of Germany
(the Project). In order to finance the Project, the Borrower entered into a EUR 827,950,000 facility agreement dated 26 August 2002 (as amended) (the Pulp Mill Facility Agreement) and a EUR 17,000,000
facility agreement dated 19 January 2012 (as amended) (the Blue Mill Facility Agreement and together with the Pulp Mill Facility Agreement the Existing Facility Agreements). |
(B) |
Mercer International Inc. the ultimate parent of the Borrower intends to issue and sell off two bonds: a high yield note of approximately USD
400,000,000 and a high yield note of approximately USD 250,000,000 (the Note Issue). Certain funds generated by the Note Issue shall be made available to the Borrower by way of various shareholder loans granted by Mercer
International Inc., directly or indirectly through its affiliates (the Shareholder Contribution). |
- 1 -
(C) |
The Borrower intends to repay the loans granted under the Existing Facility Agreements and to partly fund the required amount through (i) the
Shareholder Contribution, (ii) the cash available to the Borrower (the Cash Contribution) including any funds standing to the credit of its account denominated Debt Service Reserve Account (the DSRA
Funds) and (iii) a draw-down under the Facility (as defined below) of not more than EUR 37,500,000 (the Refinancing). |
(D) |
The Parties agree that this Agreement shall be conditional and only become legally effective upon the transfer of the Cash Contribution and the
Shareholder Contribution to the Refinancing Account (as defined below) and confirmation from the Agent that all conditions precedent as set out in Schedule 2 (Conditions Precedent) have been satisfied. Nevertheless, the Borrower shall be
entitled to submit a Utilisation Request (as defined below) prior to the Effective Date (as defined below) in order to give the Original Lenders sufficient time to prepare a disbursement of the funds on the Effective Date. However, for the avoidance
of doubt, the Utilisation Request itself will only become legally effective on the Effective Date. |
IT IS AGREED
as follows:
- 2 -
SECTION 1
INTERPRETATION
1. |
DEFINITIONS AND INTERPRETATION |
In this Agreement:
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person
or any other Subsidiary of that Holding Company.
Assignment and Assumption Certificate means a
certificate substantially in the form set out in Schedule 4 (Form of Assignment and Assumption Certificate) or any other form agreed between the Agent and the Borrower.
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
Availability Period means the period from and including the Effective
Date and including the date falling one month before the Termination Date.
Available Commitment means a
Lenders Commitment minus:
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(a) |
the amount of its participation in any outstanding and not repaid Utilisations; and |
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(b) |
in relation to any proposed Utilisation, the amount of its participation in any Utilisation that are due to be made on or before the proposed
Utilisation Date, other than that Lenders participation in any Utilisation that are due to be repaid or prepaid on or before the proposed Utilisation Date. |
Available Facility means the aggregate for the time being of each Lenders Available Commitment.
Bank Guarantee means a Bank Guarantee (selbstschuldnerische Bürgschaft) or any other form of
guarantee or letter of credit in a form agreed by any Issuing Bank, the Borrower and the Agent.
Break
Costs means the amount (if any) by which:
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(a) |
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Utilisation
or Unpaid Sum to the last day of the current Interest Period in respect of that Utilisation or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; |
exceeds:
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(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit
with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period. |
- 3 -
Business Day means a day (other than a Saturday or Sunday) on
which banks are open for general business in London, Munich and in relation to any date for payment or purchase of euro any TARGET Day.
Calculation Date has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Change of Control means if:
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(a) |
the Ultimate Parent ceases (directly or indirectly) to Control the Borrower; |
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(b) |
any other person or group of persons acting in concert (other than the Ultimate Parent) gains direct or indirect Control of the Borrower.
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For the purposes of this definition, acting in concert means, a group of persons who,
pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition of shares or partnership interests in a person, either directly or indirectly, to obtain or consolidate Control of such person.
Code means the US Internal Revenue Code of 1986.
Commitment means:
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(a) |
in relation to an Original Lender, the amount set opposite its name under the heading Commitment in Schedule 1 (The Original
Lenders) and the amount of any other Commitment transferred to it under this Agreement; and |
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(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, |
to the extent not cancelled, reduced or transferred by it under this Agreement.
Compliance Certificate means a certificate substantially in the form set out in Schedule 5 (Form of
Compliance Certificate).
Control means the direct or indirect power (whether by way of ownership of
shares, proxy, contract, agency or otherwise) to:
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(a) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of such body
corporate or another entity; or |
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(b) |
appoint or remove all, or the majority, of the partners, directors, management board members, or other equivalent officers of such body corporate;
and |
the holding of more than 50 per cent. of the issued share capital of such body corporate or
holding the post of managing partner of a limited partnership or legal partnership (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) and
Controlled shall be construed accordingly.
- 4 -
Current Assets has the meaning ascribed to it in Clause 21.1
(Financial definitions).
Current Liabilities has the meaning ascribed to it in Clause 21.1
(Financial definitions).
Current Ratio has the meaning ascribed to it in Clause 21.1
(Financial definitions).
Default means an Event of Default or any event or circumstance
specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
EBITDA has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Effective Date means the date on which the conditions precedent as set out in Clause 4.1.1 have been
fulfilled.
Environment means all, or any of, the following media: the air (including the air within
buildings and the air within other natural or man-made structures above or below ground, such as soil-vapor), water (including ground and surface water, coastal or inland waters, acquifers, leachates, pipes, drains and sewers) and land (including
buildings and other structures in, on or under it and any surface and sub-surface soil).
Environmental
Claim means any claim by any person:
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(a) |
in respect of any loss or liability suffered or incurred by that person as a result of or in connection with any violation of Environmental Law; or
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(b) |
that arises as a result of or in connection with Environmental Contamination and that could give rise to any remedy or penalty (whether interim or
final) that may be enforced or assessed by private or public legal action or administrative order or proceedings. |
Environmental Contamination means each of the following and their consequences:
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(a) |
any release, discharge, emission, leakage or spillage of any dangerous substance at or from any site owned, leased, occupied or used by the
Borrower into any part of the Environment; or |
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(b) |
any accident, fire, explosion or sudden event at any site owned, leased, occupied or used by the Borrower which is directly or indirectly caused by
or attributable to any dangerous substance; or |
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(c) |
any other pollution of the Environment; |
other than those in compliance with Environmental Law or any Environmental Licence in effect at the time of occurrence or
incidence, as the case may be.
- 5 -
Environmental Law means all regulations applicable in Germany,
agreements with the authorities and the like having legal effect in Germany concerning the protection of, or the prevention of damage to, human health, the Environment, the conditions of the work place or Environmental Contamination or the provision
of remedies in relation to harm or damage to the Environment.
Environmental Licence means any permit
and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of the Borrower conducted on or from any site owned, leased, occupied or used by it.
EU Restricted Person means a person that is (i) listed on, or owned or controlled (directly or
indirectly) by a person listed on any EU Sanctions List; (ii) located in, incorporated under the laws of, or owned or controlled (directly or indirectly) by, or acting on behalf of, a person located in or organised under the laws of a country
or territory that is the target of country-wide EU Sanctions; or (iii) otherwise a target of EU Sanctions.
EU Sanctions means any economic sanctions laws, regulations, embargoes, local applicable sanctions or
restrictive measures administered, enacted or enforced by: (i) the United Nations; (ii) the European Union; or (iii) the respective governmental institutions and agencies of any of the European Union (together EU Sanctions
Authorities).
EU Sanctions List means any list of persons which are designated the target of
sanctions, issued or maintained or made public by any of the EU Sanctions Authorities.
EURIBOR means,
in relation to any Loan in euro:
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(a) |
the applicable Screen Rate; |
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(b) |
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or |
|
(i) |
no Screen Rate is available for the Interest Period of that Loan; and |
|
(ii) |
it is not possible to calculate an Interpolated Screen Rate for that Loan, |
the Reference Bank Rate,
as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for euro and for a period equal in
length to the Interest Period of that Loan and, if that rate is less than zero, EURIBOR shall be deemed to be zero.
Event of Default means any event or circumstance specified as such in Clause 23 (Events of Default).
- 6 -
Existing Bank Guarantees means the two bank guarantees granted
to the Borrower by UniCredit Bank AG in the amount of (i) EUR 400,000, dated 21 February 2014 and (ii) EUR 2,092,860, dated 11 December 2012.
Existing Indebtedness means the indebtedness of the Borrower pursuant to the Existing Facility Agreements as
well as any other indebtedness as listed in Schedule 7 (Existing Indebtedness).
Existing
Security means the Security of the Borrower for the Existing Indebtedness and as otherwise set out in Schedule 6 (Existing Security).
Expiry Date means, in relation to any Bank Guarantee, the date on which the maximum aggregate liability
under that Bank Guarantee is to be reduced to zero.
Facility means the revolving loan facility made
available under this Agreement as described in Clause 2 (The Facility).
Facility Office means
the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days written notice) as the office or offices through which it will
perform its obligations under this Agreement.
FATCA means:
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(a) |
sections 1471 to 1474 of the Code or any associated regulations; |
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(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction,
which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or |
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(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US
Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
FATCA Application Date means:
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(a) |
in relation to a withholdable payment described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain
other payments from sources within the US), 1 July 2014; |
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(b) |
in relation to a withholdable payment described in section 1473(1)(A)(ii) of the Code (which relates to gross proceeds from
the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or |
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(c) |
in relation to a passthru payment described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above,
1 January 2017, |
- 7 -
or, in each case, such other date from which such payment may become subject to a
deduction or withholding required by FATCA as a result of any change in FATCA after the Effective Date.
FATCA
Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
Fee Letter means any letter dated on or about the date of this Agreement between the Arranger and the
Borrower or the Agent and the Borrower or any Issuing Bank and the Borrower setting out any of the fees referred to in Clause 13 (Fees).
Finance Document means:
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(b) |
an Assignment and Assumption Certificate; |
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(e) |
the Hedging Agreement; |
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(f) |
each Security Document; |
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(g) |
the Security Pooling Agreement; |
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(h) |
the Shareholders Undertaking Agreement; and |
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(i) |
any other document agreed to be a Finance Document by both the Agent and the Borrower. |
Finance Party means the Agent, the Arranger, the Security Agent, any Issuing Bank, the Hedging Bank or a
Lender.
Financial Indebtedness means (without duplication) any indebtedness (excluding accrued expenses
and trade payables) for or in respect of:
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(b) |
any amount raised by acceptance under any acceptance credit facility; |
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(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
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(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with US-GAAP, be treated as a capital
lease; |
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(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
- 8 -
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(f) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction that amount) shall be taken into account);
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(g) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary bank guarantee or any other instrument issued
by a bank or financial institution; and |
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(h) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (g) above.
|
Financial Model means the financial model agreed between the Parties on or about the
date of this Agreement, as amended from time to time according to the provisions of this Agreement.
GAAP means generally accepted accounting principles in the Federal Republic of Germany.
Hedging Agreement means the interest rate swap dated 27 August 2002 as confirmed by the interest
rate swap confirmation dated 27 August 2002 entered into under the Hedging Master Agreement.
Hedging
Bank means UniCredit Bank AG.
Hedging Master Agreement means the Master Agreement for
Financial Derivatives Transactions (Rahmenvertrag für Finanztermingeschäfte) dated 26 August 2002 (as amended by an additional agreement (Ergänzungsvereinbarung) dated 20 October 2009) and entered
into between the Borrower and the Hedging Bank.
Hedge Security Account means the account with the
IBAN DE46700202700015528043.
Holding Company means, in relation to a person, any other person in
respect of which it is a Subsidiary.
Insurances means any and all of the contracts of insurance and
reinsurance that the Borrower is required to procure and maintain as set out in Schedule 9 (Insurances).
Interest Cover Ratio has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Interest Expense has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Interest Payment Notice means the notice to the Agent substantially in the form set out in Schedule 10
(Form of Interest Payment Notice) to this Agreement.
Interest Period means, in relation to a
Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).
- 9 -
Interest Receivable has the meaning ascribed to it in Clause
21.1 (Financial definitions).
Interpolated Screen Rate means, in relation to EURIBOR for any
Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan;
and |
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
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each as of the Specified Time on the Quotation Day for the currency of that Loan.
Issuing Bank means each Lender who has accepted a Utilisation Request for a Utilisation by way of Bank
Guarantee.
Joint Venture means any joint venture entity, whether a company, unincorporated firm,
undertaking, association, joint venture or partnership (limited or otherwise) or any other entity.
Lender means:
|
(a) |
any Original Lender; and |
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 24 (Changes to the Lenders),
|
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
Leverage Ratio has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time
being of that loan.
Majority Lenders means a Lender or Lenders whose Commitments aggregate more than
65% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 65% of the Total Commitments immediately prior to the reduction).
Margin means 3.50 per cent. per annum.
- 10 -
Material Adverse Effect means an event, occurrence or
condition which has materially impaired or which will materially impair (as compared with the situation which would have prevailed but for such event, occurrence or condition):
|
(a) |
the business, operation, property and financial condition of the Borrower taken as a whole and as a result, the ability of the Borrower to perform
any of its obligations under the Finance Documents; or |
|
(b) |
the validity or enforceability of the Finance Documents. |
Minimum Liquidity means the aggregate of the Available Facility and Unencumbered Cash being at least EUR
20,000,000.
Month means a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
|
(a) |
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the immediately preceding Business Day; and |
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day
in that calendar month. |
The above rules will only apply to the last Month of any period.
Net Debt has the meaning ascribed to it in Clause 21.1 (Financial definitions).
New Lender has the meaning given to that term in Clause 24 (Changes to the Lenders).
Non-EU Restricted Person means a person that is (i) listed on, or owned or controlled (directly or
indirectly) by a person listed on any Non-EU Sanctions List; (ii) located in, incorporated under the laws of, or owned or controlled (directly or indirectly) by, or acting on behalf of, a person located in or organised under the laws of a
country or territory that is the target of country-wide Non-EU Sanctions; or (iii) otherwise a target of Non-EU Sanctions:
Non-EU Sanctions means any economic sanctions laws, regulations, embargoes, local applicable sanctions or
restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Kingdom; or (iii) the respective governmental institutions and agencies of any of the foregoing, including without
limitations, OFAC, the United States Department of State, and Her Majestys Treasury (together Non-EU Sanctions Authorities).
Non-EU Sanctions List means the Specially Designated Nationals and Blocked Persons list issued
by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majestys Treasury, or any similar list issued or maintained or made public by any of the Non-EU Sanctions Authorities.
Obligations has the meaning ascribed to it in Clause 21.1 (Financial definitions).
- 11 -
OFAC means the Office of Foreign Assets Control of the U.S.
Department of the Treasury.
Original Financial Statements means the audited financial statements in
respect of the Borrower, SP Holding and the Ultimate Parent for the period ended 31 December 2013.
Participating Member State means any member state of the European Union that has the euro as its lawful
currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Party means a party to this Agreement.
Permitted Encumbrances means with respect to the ZSG Group:
|
(a) |
any Existing Security; |
|
(b) |
any lien arising by operation of law or in the ordinary course of business; |
|
(c) |
any Security arising out of conditional sale, any retention of title agreement or similar agreements entered into in the ordinary course of
business; |
|
(d) |
any Security over assets in connection with lease agreements entered into in connection with a rail car financing replacing existing rail car
rental contracts having an aggregate contract value of EUR 23,000,000 at any time; |
|
(e) |
any Security over assets in connection with any new lease agreements having an aggregate contract value of EUR 5,000,000 at any time;
|
|
(f) |
any Security over assets in connection with capital lease agreements whether with existing and/or new lessors, institutions or lease providers,
replacing, amending or restating operating leases in effect at the date of this Agreement having an aggregate contract value of EUR 20,000,000 at any time; |
|
(g) |
any Transaction Security; |
|
(h) |
any Security securing the Hedging Agreement; |
|
(i) |
any Security securing the Existing Bank Guarantees; |
|
(j) |
any liens arising as a result of litigation or legal proceedings that are being contested in good faith by appropriate proceedings;
|
|
(k) |
any Security securing any Financial Indebtedness permitted in accordance with paragraph (f) of the definition of Permitted Indebtedness.
|
Permitted Indebtedness means with respect to the ZSG Group any:
|
(a) |
Existing Indebtedness set out in Schedule 7 (Existing Indebtedness); |
|
(b) |
Existing Bank Guarantees; |
- 12 -
|
(c) |
Financial Indebtedness incurred under, or as expressly permitted by, the Transaction Documents; |
|
(d) |
Financial Indebtedness incurred under the hedging transactions contemplated by and documented by the Hedging Agreement; |
|
(e) |
Financial Indebtedness incurred as Subordinated Liabilities by the Borrower, which is legally and structurally subordinated to any liabilities
(including contingent liabilities) of the Borrower under the Finance Documents in accordance with the Shareholders Undertaking Agreement; |
|
(f) |
Financial Indebtedness and any other interest bearing indebtedness incurred by the ZSG Group in the ordinary course of business the principal
amount of which does in aggregate not exceed EUR 5,000,000 (or the equivalent in any other currency) at any time; |
|
(g) |
Financial Indebtedness incurred under any new lease agreements having an aggregate contract value of EUR 5,000,000; |
|
(h) |
Financial Indebtedness incurred under any lease agreements entered into in connection with a rail car financing replacing existing rail car rental
contracts having an aggregate contract value of EUR 23,000,000 at any time; |
|
(i) |
Financial Indebtedness incurred in connection with capital lease agreements whether with existing and/or new lessors, institutions or lease
providers, replacing, amending or restating operating leases in effect at the date of this Agreement having an aggregate contract value of EUR 20,000,000 at any time; |
|
(j) |
other Financial Indebtedness permitted by the Majority Lenders from time to time. |
Permitted Transaction means:
|
(b) |
the incurrence of Permitted Indebtedness and the granting of Permitted Encumbrances; |
|
(c) |
transactions (other than the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the
ordinary course of business (including with respect to related parties or affiliates on arms-length basis); and |
|
(d) |
any other disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, under the
Finance Documents or as permitted by the Majority Lenders. |
Quotation Day means, in
relation to any period for which an interest rate is to be determined two TARGET Days before the first day of that period unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the
Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
- 13 -
Reduction Date means any day on which a prepayment or
cancellation in accordance with Clause 9 (Prepayment and cancellation) is to occur.
Reduction
Instalment means the aggregate amount to be repaid or cancelled on any Reduction Date.
Reference Bank
Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks in relation to EURIBOR, as the rate at which the relevant Reference Bank could borrow funds
in the European interbank market in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
Reference Banks means, in relation to EURIBOR, the principal office in Munich of UniCredit Bank AG and of
the principal offices in Frankfurt am Main of Commerzbank AG and Deutsche Bank AG or such other banks as may be appointed by the Agent in consultation with the Borrower.
Refinancing Account means the account with the IBAN DE94700202700010014281 held with UniCredit Bank AG.
Relevant Interbank Market means in relation to euro, the European interbank market.
Renewal Request means a written notice delivered to the Agent in accordance with Clause 6.5.4 (Renewal of
a Bank Guarantee).
Repeating Representations means each of the representations set out in
Clause 19.2 (Status), Clause 19.3 (Binding obligations), Clause 19.4 (Non-conflict with other obligations), Clause 19.5 (Power and authority), Clause 19.6 (Validity and admissibility in evidence),
Clause 19.8 (No default), Clause 19.9.3 (No misleading information), Clause 19.10 (Financial statements), Clause 19.11 (Pari passu ranking) and Clause 19.14 (Good title to assets).
Rollover Utilisation means one or more Utilisations:
|
(a) |
made or to be made on the same day that (i) a maturing Loan is due to be repaid or (ii) the Borrower is obliged to pay to the Agent for
any Issuing Bank the amount of any claim under a Bank Guarantee; |
|
(b) |
the aggregate amount of which is equal to or less than (i) the maturing Loan or (ii) the claim under the Bank Guarantee;
|
|
(c) |
in the same currency as (i) the maturing Loan or (ii) the claim under the Bank Guarantee; and |
|
(d) |
made or to be made to the Borrower for the purpose of (i) refinancing a maturing Loan or (ii) satisfying the obligations of the Borrower
to pay the amount of a claim under the Bank Guarantee to the Agent for any Issuing Bank. |
- 14 -
Screen Rate means in relation to EURIBOR, the euro interbank
offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters
page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Agent may specify another page or
service displaying the relevant rate after consultation with the Borrower.
Security means a mortgage,
charge, pledge, lien, assignment by way of security, guarantee, parallel debt obligation or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Documents means:
|
(a) |
German law global assignment agreement (Globalzession); |
|
(b) |
German law transfer of assets by way of security (Raumsicherungsübereignung); |
|
(c) |
German law pledge of bank accounts (Kontenverpfändung), excluding the Shareholder Distribution Account; and |
|
(d) |
any other document agreed to be a Security Document by both the Agent and the Borrower. |
Security Pooling Agreement means the security pooling agreement entered into on or about the date of this
Agreement between, inter alia, the Agent, the Security Agent, the Hedging Bank, the Original Lender and the Borrower.
Shareholder Distribution Account means the account with the IBAN DE61700202700005753180.
Shareholder Loan Agreements means each of the shareholder loan agreements listed in Schedule 11
(Shareholder Loan Agreements) and any document agreed to be a Shareholder Loan Agreement by both the Agent and the Borrower.
Shareholder Loan means any debt incurred by the Borrower pursuant to a Shareholder Loan Agreement including
interest and accrued interest.
Shareholders Undertaking Agreement means the shareholders
undertaking agreement entered into on or about the date of this Agreement between, inter alia, the Ultimate Parent, the Security Agent, SP Holding, and the Borrower.
Specified Time means a time determined in accordance with Schedule 8 (Timetables).
- 15 -
SP Holding means Stendal Pulp Holding GmbH, a limited
liability company (Gesellschaft mit beschränkter Haftung) incorporated, organised and validly existing under the laws of the Federal Republic of Germany having its office at Charlottenstr. 59, 10117 Berlin, Federal Republic of Germany
and registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Berlin (Charlottenburg), number HRB 99095.
Subordinated Creditor means the Ultimate Parent, SP Holding, ZPR and any other Affiliate that provides
Shareholder Loans to the Borrower and that is from time to time party to the Shareholders Undertaking Agreement as a subordinated creditor.
Subordinated Liabilities means any and all payment obligations whether present or future, actual or
contingent under any Shareholder Loan Agreement.
Subsidiary means companies which are dependent
enterprises of the relevant Holding Company, or any company in respect of which such term is used, within the meaning of Sec. 17 German Stock Corporation Act (Aktiengesetz) and subsidiaries within the meaning of Sec. 290 German Commercial
Code (Handelsgesetzbuch).
Surviving Bank Guarantee has the meaning given to it in Clause 7.2.5
(Claims under a Bank Guarantee).
TARGET means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system.
TARGET Day means any day on which TARGET is open for the
settlement of payments in euro.
Tax means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
Term means, in relation to any Bank Guarantee, the period from its Utilisation Date until its Expiry Date.
Termination Date means the earlier of
|
(b) |
the date falling one month prior to the final maturity date of such note issued in connection with the Note Issue which has the shorter duration.
|
Total Commitments means the aggregate of the Commitments, being EUR 75,000,000
at the Effective Date.
Transaction Documents means the Finance Documents, the Shareholder Loan
Agreements and any other document agreed to be a Transaction Document by both the Agent and the Borrower.
Transaction Security means the Security created or purported to be created under or pursuant to the Security
Documents or any other Finance Document.
- 16 -
Transfer Date means, in relation to a transfer, the later of:
|
(a) |
the proposed Transfer Date specified in the Assignment and Assumption Certificate; and |
|
(b) |
the date on which the Agent executes the Assignment and Assumption Certificate. |
Treasury Transactions means any derivative transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price.
Ultimate Parent means Mercer International Inc., a
corporation organised under the laws of the State of Washington, United States of America, having an office at Suite 1120, 700 West Pender Street, Vancouver, B.C. V6C 1G8, Canada.
Unencumbered Cash has the meaning ascribed to it in Clause 21.1 (Financial definitions).
Unpaid Sum means any sum due and payable but unpaid by the Borrower under the Finance Documents.
US means the United States of America.
US-GAAP means the generally accepted accounting principles in the US.
US Tax Obligor means a Borrower:
|
(a) |
which is resident for tax purposes in the US; or |
|
(b) |
some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes. |
Utilisation means a Loan or a Bank Guarantee.
Utilisation Date means the date on which a Utilisation is made.
Utilisation Request means a notice substantially in the form set out in Schedule 3 (Utilisation
Request).
VAT means:
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112);
and |
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax
referred to in paragraph (a) above, or imposed elsewhere. |
ZPR means Zellstoff-
und Papierfabrik Rosenthal GmbHm, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated, organised and validly existing under the laws of the Federal Republic of Germany, having its office at Hauptstraße
16, 07366 Blankenstein, Federal Republic of Germany and registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena, number HRB 209855.
- 17 -
ZSG Group means the Borrower, ZSG Holz and ZSG Transport as
well as any further subsidiaries of the Borrower.
ZSG Holz means Zellstoff Stendal Holz GmbH, a limited
liability company (Gesellschaft mit beschränkter Haftung) incorporated, organised and validly existing under the laws of the Federal Republic of Germany having its office at Goldbecker Strasse 38, 39596 Arneburg, Federal Republic of
Germany and registered in the commercial register (Handelsregister) of the loacal court (Amtsgericht) of Stendal, number HRB 4089.
ZSG Transport means Zellstoff Stendal Transport GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) incorporated, organised and validly existing under the laws of the Federal Republic of Germany having its office at Goldbecker Strasse 38, 39596 Arneburg, Federal Republic of Germany and registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Stendal, number HRB 4088.
|
1.2.1 |
Unless a contrary indication appears, any reference in this Agreement to: |
|
(a) |
the Agent, the Arranger, the Borrower, any Finance Party, any
Issuing Bank, any Lender or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under
the Finance Documents; |
|
(b) |
assets includes present and future properties, revenues and rights of every description; |
|
(c) |
assignment means Abtretung; |
|
(d) |
authorised signatory means Geschäftsführer or Prokurist insofar as any company incorporated or limited
partnership established in the Federal Republic of Germany is concerned; |
|
(e) |
board of directors means Geschäftsführung insofar as any company incorporated or limited partnership
established in the Federal Republic of Germany is concerned; |
|
(f) |
a reference to a director means Geschäftsführer insofar as any company incorporated or limited partnership
established in the Federal Republic of Germany is concerned; |
|
(g) |
disposal or dispose means a sale, lease, licence, transfer or loan (but not including by way of loan of
money) or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions); |
|
(h) |
the equivalent of an amount specified in a particular currency (the specified currency amount) shall be
construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount Agents Spot Rate of Exchange; |
- 18 -
|
(i) |
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument
as amended or novated; |
|
(j) |
gross negligence means grobe Fahrlässigkeit; |
|
(k) |
a group of Lenders includes all the Lenders; |
|
(l) |
guarantee means any guarantee, letter of credit, bond, indemnity or similar assurance against loss including a third party
security arrangement, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such
obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; |
|
(m) |
including means including without limitation; |
|
(n) |
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money;
|
|
(o) |
a reference to a limited partnership means, insofar as it is established under the laws of the Federal Republic of Germany, a
GmbH & Co. KG; |
|
(p) |
management means Geschäftsführung insofar as any company incorporated or limited partnership established in the
Federal Republic of Germany is concerned; |
|
(q) |
pay, prepay or repay in Clause 22 (General undertakings) includes by way of
set-off, combination of accounts or otherwise; |
|
(r) |
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust,
joint venture, consortium, partnership or other entity (whether or not having separate legal personality); |
|
(s) |
promptly means unverzüglich; |
|
(t) |
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of
any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; |
|
(u) |
rights include all rights, whether actual or contingent, present or future, arising under contract or law;
|
- 19 -
|
(v) |
the share capital of a company includes in the case of a partnership, partnership interests and in any case includes any equity
or other ownership interest; |
|
(w) |
trustee, fiduciary and fiduciary duty has in each case the meaning given to such term
under applicable law; |
|
(x) |
wilful default and wilful misconduct means Vorsatz; |
|
(y) |
references (i) to the winding up, dissolution, or administration of a person or
(ii) to a receiver or administrative receiver in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous
proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect
of proceedings) the seeking or occurrence of liquidation, winding up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors; |
|
(z) |
the Borrower repaying or prepaying a Bank Guarantee means: |
|
(i) |
the Borrower providing cash cover for that Bank Guarantee; |
|
(ii) |
the maximum amount payable under the Bank Guarantee being reduced in accordance with its terms; or |
|
(iii) |
the respective Issuing Bank being satisfied that it has no further liability under that Bank Guarantee, and the amount by which a Bank Guarantee is
repaid or prepaid under Clause 1.2.1(z)(i) and Clause 1.2.1(z)(ii) above is the amount of the relevant cash cover or reduction; |
|
(aa) |
the Borrower providing cash cover for a Bank Guarantee means the Borrower paying an amount in the currency of the Bank Guarantee
to an interest-bearing account in the name of the Borrower and the following conditions are met: |
|
(i) |
the account is with the respective Issuing Bank; |
|
(ii) |
withdrawals from the account may only be made to pay the respective Issuing Bank amounts due and payable to it under this Agreement in respect of
that Bank Guarantee until no amount is or may be outstanding under that Bank Guarantee; and |
|
(iii) |
the Borrower has executed a security document, in form and substance satisfactory to the respective Issuing Bank with which that account is held,
creating a first ranking security interest over that account; |
- 20 -
|
(bb) |
the Interest Period of a Bank Guarantee will be construed as a reference to the Term of that Bank Guarantee; |
|
(cc) |
an amount borrowed includes any amount utilised by way of Bank Guarantee; |
|
(dd) |
a Utilisation made or to be made to the Borrower includes a Bank Guarantee issued on its behalf; |
|
(ee) |
amounts outstanding under this Agreement include amounts outstanding under or in respect of any Bank Guarantee; |
|
(ff) |
an outstanding amount of a Bank Guarantee at any time is the maximum amount that is or may be payable by the Borrower in respect of that Bank
Guarantee at that time; |
|
(gg) |
a provision of law is a reference to that provision as amended or re-enacted; and |
|
(hh) |
a time of day is a reference to Central European time (CET) or, as the context requires, London time; and |
|
(ii) |
words importing the plural shall include the singular and vice versa. |
|
1.2.2 |
Section, clause and Schedule headings are for ease of reference only. |
|
1.2.3 |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this Agreement. |
|
1.2.4 |
A Default or an Event of Default is continuing if it has not been remedied or waived. |
|
1.2.5 |
In any calculation or determination done for the purposes of a Finance Document, no amount shall be double-counted or duplicated.
|
1.3 |
Currency symbols and definitions |
, EUR and euro denote the single currency of the Participating
Member States.
This Agreement is made in the English language. The English language version of this Agreement shall prevail over any
translation of this Agreement, save for where a German translation of a word or phrase appears in the text of this Agreement, in which case the German translation of such word or phrase shall prevail.
- 21 -
1.5 |
Payment of Interest on Shareholder Loans |
Notwithstanding any provision of the Finance Documents to the contrary, the Borrower, the Agent and the Lenders agree that:
|
1.5.1 |
the Shareholder Distribution Account shall not be subject to any Security from, by or under any Finance Document; and |
|
1.5.2 |
nothing herein or in any Finance Document shall restrict, prohibit or otherwise limit the Borrower from paying, disbursing or transmitting all or
parts of any moneys or assets in the Shareholder Distribution Account in its sole discretion from time to time and at any time. |
|
1.5.3 |
The Borrower may transfer funds into the Shareholder Distribution Account or pay interest due under any Shareholder Loan Agreement up to an
aggregate amount of the Euro equivalent of USD 23,000,000 per annum, provided that whenever such payment is to be made: |
|
(a) |
no breach of any financial covenants as set out in Clause 21 (Financial Covenants) has occurred as of the last Calculation Date prior to
such transfer; |
|
(b) |
no Event of Default has occurred and is continuing; |
|
(c) |
the Minimum Liquidity is available to the Borrower after any such transfer and payment of interest; and |
|
(d) |
the Borrower submits five (5) Business Days prior to such transfer an Interest Payment Notice to the Agent. |
- 22 -
SECTION 2
THE FACILITY
Subject to the terms of this Agreement, the Lenders make available to the Borrower a revolving credit facility in an aggregate
amount equal to the Total Commitments.
2.2 |
Finance Parties rights and obligations |
|
2.2.1 |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents (Ausschluss der gesamtschuldnerischen
Haftung). |
|
2.2.2 |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from the Borrower shall be a separate and independent debt. The formation of joint property (Gesamthandsvermögen) shall be excluded. |
|
2.2.3 |
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
The Borrower shall apply all amounts borrowed by it under the Facility:
|
3.1.1 |
until and including the date of the Refinancing, up to a maximum aggregate amount of EUR 37,500,000 (including an amount of up to
EUR 8,500,000 determined to fund the Hedge Security Account) to finance the Refinancing; and |
|
3.1.2 |
thereafter towards the financing of its working capital and operational and business requirements, including payment of interest, any principal on
Shareholder Loan Agreements and dividends as permitted pursuant to the terms of the Finance Documents. |
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
- 23 -
4.1 |
Initial conditions precedent |
|
4.1.1 |
This Agreement and the rights and obligations thereunder shall only become legally valid and effective if |
|
(a) |
each of the Cash Contribution and the Shareholder Contribution has been received in the Refinancing Account; and |
|
(b) |
the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance
satisfactory to the Agent |
prior to 29 December 2014 and has promptly notified such receipt to the
Borrower and the Lenders.
|
4.1.2 |
Without prejudice to Clause 4.1.1 above, the Borrower may deliver a Utilisation Request prior to the receipt of a respective notice by the
Agent. However, for the avoidance of doubt, this Utilisation Request shall only become effective on the Effective Date and the Lenders shall only be required to fulfil their obligations pursuant to Clause 5.5 (Lenders participation)
once the Effective Date has occurred. |
4.2 |
Further conditions precedent |
The Lenders will only be obliged to comply with Clause 5.5 (Lenders participation) if on the proposed Utilisation
Date:
|
4.2.1 |
provided that this Agreement has become effective pursuant to Clause 4.1.1 above; |
|
4.2.2 |
in the case of a Rollover Utilisation, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan,
no Default is continuing or would result from the proposed Loan; and |
|
4.2.3 |
the Repeating Representations to be made by the Borrower are true in all material respects. |
4.3 |
Maximum number of Utilisation |
The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation ten (10) or more Loans would
be outstanding.
- 24 -
SECTION 3
UTILISATION
5.1 |
Delivery of a Utilisation Request for Loans |
The Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the
Specified Time.
5.2 |
Cancellation of undrawn Commitments |
Any Commitment not drawn within the Availability Period will be cancelled.
5.3 |
Completion of a Utilisation Request for Loans |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
5.3.1 |
the proposed Utilisation Date is a Business Day within the Availability Period; |
|
5.3.2 |
the currency and amount of the Utilisation comply with Clause 5.4 (Currency and amount); and |
|
5.3.3 |
the proposed Interest Period complies with Clause 11 (Interest Periods). |
|
5.4.1 |
The currency specified in an Utilisation Request must be euro. |
|
5.4.2 |
The amount of the proposed Loan must be: |
|
(a) |
a minimum of EUR 1,000,000 (or its equivalent) (and an integral multiple of EUR 250,000) (or its equivalent); or |
|
(b) |
in any event such that its amount is less than or equal to the Available Facility. |
5.5 |
Lenders participation |
|
5.5.1 |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date
through its Facility Office. |
|
5.5.2 |
The amount of each Lenders participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan. However, if the Loan is to be disbursed for repayment of a Bank Guarantee pursuant to Clause 7.2.2 (Claims under a Bank Guarantee), the respective Available Commitments of the Lender which is at
the same time the Issuing Bank of that Bank Guarantee, shall for, the purpose of this Clause 5.5.2, be deemed increased by an amount equal to the amount of the relevant Bank Guarantee to be repaid by the requested Loan. |
- 25 -
|
5.5.3 |
The Agent shall determine the amount of each Loan and shall notify each Lender of the amount of each Loan and the amount of its participation in
that Loan, in each case by the Specified Time. |
|
5.5.4 |
The Borrower irrevocably authorises (bevollmächtigt) and directs the Agent to remit the proceeds of each Loan as follows:
|
|
(a) |
in the case of a Loan to be used to repay Existing Indebtedness, to the Refinancing Account; |
|
(b) |
in the case of all other Loans, to the account specified in the relevant Utilisation Requests. |
|
5.5.5 |
For the purposes of this Clause 5.5 each Party, which is incorporated or established under the laws of the Federal Republic of Germany, hereby
releases the Agent from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to
such Party. A Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly. |
6. |
UTILISATION - BANK GUARANTEES |
|
6.1.1 |
With the exception of the first Utilisation the Facility may be utilised by way of Bank Guarantees up to an aggregate amount of EUR 5,000,000
and a maximum number of six (6) Utilisations. |
|
6.1.2 |
Clause 5 (Utilisation - Loans) does not apply to Utilisations by way of Bank Guarantees. |
6.2 |
Delivery of a Utilisation Request for Bank Guarantees |
Upon, and subject to, prior written confirmation by a Lender that it is prepared to become an Issuing Bank, taking into account
its respective Available Commitment at that point in time, the Borrower may request a Bank Guarantee to be issued by delivery to that Lender, with a copy to the Agent, a duly completed Utilisation Request not later than the Specified Time.
6.3 |
Completion of a Utilisation Request for Bank Guarantees |
|
6.3.1 |
Each Utilisation Request for a Bank Guarantee is irrevocable and will not be regarded as having been duly completed unless: |
|
(a) |
it specifies that it is for a Bank Guarantee; |
|
(b) |
the proposed Utilisation Date is a Business Day within the Availability Period applicable to the Facility; |
|
(c) |
the currency and amount of the Bank Guarantee comply with Clause 6.4 (Currency and amount); |
- 26 -
|
(d) |
the Expiry Date of the Bank Guarantee falls on or before the Termination Date; |
|
(e) |
the delivery instructions for the Bank Guarantee are specified; and |
|
(f) |
the identity of the beneficiary and purpose of the Bank Guarantee have been approved by the Agent and the respective Issuing Bank.
|
|
6.3.2 |
Only one Utilisation may be requested in each Utilisation Request. |
|
6.4.1 |
The currency specified in a Utilisation Request for a Bank Guarantee must be euro. |
|
6.4.2 |
The amount of the proposed Bank Guarantee must be such that it is equal to the lower of (i) the Issuing Banks respective Available
Commitment and (ii) the amount which is the difference between (A) EUR 5,000,000 and (B) the aggregate amount of all Bank Guarantees utilised. |
6.5 |
Issue of Bank Guarantees |
|
6.5.1 |
If the conditions set out in this Agreement have been met, the respective Issuing Bank shall issue the Bank Guarantee on the Utilisation Date.
|
|
6.5.2 |
The respective Issuing Bank will only be obliged to comply with Clause 6.5.1 above if on the date of the Utilisation Request or Renewal Request and
on the proposed Utilisation Date: |
|
(a) |
in the case of a Bank Guarantee to be renewed in accordance with Clause 6.5.4 (Renewal of a Bank Guarantee), no action has been taken under
Clause 23.20 (Acceleration) and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and |
|
(b) |
the Repeating Representations to be made by the Borrower are true. |
|
6.5.3 |
The amount of each Bank Guarantee will reduce the Commitment of the respective Issuing Bank in its capacity as Original Lender until such Bank
Guarantee is repaid or discharged by the Borrower. |
|
6.5.4 |
The respective Issuing Bank shall notify the Agent who will notify each of the other Lenders of the details of the requested Bank Guarantee.
|
6.6 |
Renewal of a Bank Guarantee |
|
6.6.1 |
The Borrower may request that any Bank Guarantee issued on its behalf by an Issuing Bank be renewed by delivery to the respective Issuing Bank of a
Renewal Request in substantially similar form to a Utilisation Request for a Bank Guarantee by the Specified Time. |
- 27 -
|
6.6.2 |
The respective Issuing Bank shall treat any Renewal Request in the same way as a Utilisation Request for a Bank Guarantee. |
|
6.6.3 |
The terms of each renewed Bank Guarantee shall be the same as those of the relevant Bank Guarantee immediately prior to its renewal, except that:
|
|
(a) |
its amount may be less than the amount of the Bank Guarantee immediately prior to its renewal; and |
|
(b) |
its Term shall start on the date which was the Expiry Date of the Bank Guarantee immediately prior to its renewal, and shall end on the proposed
Expiry Date specified in the Renewal Request. |
|
6.6.4 |
If the conditions set out in this Agreement have been met, the respective Issuing Bank shall amend and reissue any Bank Guarantee pursuant to a
Renewal Request. |
If a Bank Guarantee or any amount outstanding under a Bank Guarantee is expressed to be immediately payable, the Borrower shall
repay or prepay that amount immediately.
7.2 |
Claims under a Bank Guarantee |
|
7.2.1 |
The Borrower irrevocably and unconditionally authorises any Issuing Bank to pay any claim made or purported to be made under a Bank Guarantee
issued by that Issuing Bank as requested by the Borrower and which appears on its face to be in order (in this Clause 7.2, a Claim). |
|
7.2.2 |
The Borrower shall immediately on demand or, if such payment is being funded by a Loan, shall within five (5) Business Days of demand, pay to
the Agent for the respective Issuing Bank an amount equal to the amount of any Claim paid. |
|
7.2.3 |
The Borrower acknowledges that the respective Issuing Bank: |
|
(a) |
is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and |
|
(b) |
deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set off, counterclaim
or other defence of any person. |
|
7.2.4 |
The obligations of the Borrower under this clause will not be affected by: |
|
(a) |
the sufficiency, accuracy or genuineness of any claim or any other document; or |
- 28 -
|
(b) |
any incapacity of, or limitation on the powers of, any person signing a claim or other document. |
|
7.2.5 |
If a Bank Guarantee remains outstanding after the Termination Date (a Surviving Bank Guarantee) but has on or before that date
been repaid by way of provision of cash cover as set out in Clause 1.2.1(z)(i) (Construction), that Bank Guarantee shall be treated as being outstanding under a bilateral guarantee facility provided by the respective Issuing Bank, the terms
of which (including the fee) are to be set out in a separate document between the respective Issuing Bank and the Borrower. |
|
7.3.1 |
The Borrower shall immediately on demand indemnify any Issuing Bank against any cost, loss or liability incurred by such Issuing Bank (otherwise
than by reason of such Issuing Banks gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz)) in acting as Issuing Bank under any Bank Guarantee requested by (or on behalf of) the Borrower.
|
|
7.3.2 |
The obligations of the Borrower under this Clause 7.3 will not be affected by any act, omission, matter or thing which, but for this clause, would
reduce, release or prejudice any of its obligations under this Clause 7.3 (whether or not known to it or any other person) including: |
|
(a) |
any time, waiver or consent granted to, or composition with, the Borrower, any beneficiary under a Bank Guarantee or any other person;
|
|
(b) |
the release of the Borrower or any other person under the terms of any composition or arrangement with any creditor; |
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of the Borrower, any beneficiary under a Bank Guarantee or other person or any non presentation or non observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any
security; |
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Borrower or any
beneficiary under a Bank Guarantee or any other person; |
|
(e) |
any amendment (however fundamental) or replacement of a Finance Document, any Bank Guarantee or any other document or security;
|
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Bank Guarantee or any other document
or security; or |
|
(g) |
to the extent legally possible, any insolvency or similar proceedings. |
- 29 -
7.4 |
Rights of contribution |
The Borrower will not be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it
may make under this Clause 7.
No Issuing Bank shall be obliged before exercising any of the rights, powers or remedies conferred upon it by this Agreement or
by law:
|
7.5.1 |
to take any action or obtain judgment in any court against the Borrower; |
|
7.5.2 |
to make or file any claim or proof in a winding up or dissolution of the Borrower; or |
|
7.5.3 |
to enforce or seek to enforce any other security taken in respect of any of the obligations of the Borrower under this Agreement.
|
- 30 -
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
The Borrower shall repay each Loan on the last day of its Interest Period and all Loans in full on the Termination Date.
8.2 |
Repayment of Guarantees |
The Borrower shall repay each Bank Guarantee on its Expiry Date and all Bank Guarantees in full on the Termination Date.
9. |
PREPAYMENT AND CANCELLATION |
|
9.1.1 |
If it becomes unlawful in any applicable jurisdiction for any Lender or any Issuing Bank to perform any of its obligations as contemplated by this
Agreement or to fund or maintain its participation in any Utilisation or it becomes unlawful for any Affiliate of a Lender to do so, including by reason of: |
|
(a) |
any member of the ZSG Group or any of its affiliates being or becoming an EU Restricted Person or a Non-EU Restricted Person or acting directly or
indirectly on behalf of an EU Restricted Person or a Non-EU Restricted Person or using any revenue or benefit derived from any activity or dealing with an EU Restricted Person or a Non-EU Restricted Person or any other unlawful activity in
discharging any obligation due or owing to a Lender; or |
|
(b) |
any member of the ZSG Group or any of its affiliated permitting or authorising any person to, directly or indirectly, use, lend, make payments of,
contribute or otherwise make available, all or nay part of the proceeds of the Facility or other transaction contemplated by this Agreement to fund any trade, business or other activities or otherwise make any payments (i) involving or for the
benefit of any EU Restricted Person or a Non-EU Restricted Person or (ii) in any other manner that could result in the Borrower or a Lender being in breach of any EU Sanctions or Non-EU Sanctions or becoming an EU Restricted Person,
|
that Lender or in the case of the event described in sub-paragraph (a) and (b) above, the
Borrower shall promptly notify the Agent upon becoming aware of that event.
|
9.1.2 |
Upon the Agent notifying the Borrower or, if applicable, that Lender, the Commitment of that Lender will be immediately cancelled; and the Borrower
shall repay that Lenders participation in the Utilisations made to it on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Borrower. |
- 31 -
Upon the occurrence of a Change of Control:
|
9.2.1 |
the Borrower shall promptly notify the Agent upon becoming aware of that event; |
|
9.2.2 |
a Lender shall not be obliged to fund a Utilisation (except for a Rollover Utilisation); and |
|
9.2.3 |
if the Majority Lenders so require, the Agent shall, by not less than thirty (30) Business Days notice to the Borrower, cancel the Total
Commitments and declare all outstanding Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding
amounts will become immediately due and payable. |
9.3 |
Voluntary cancellation |
The Borrower may, if:
|
9.3.1 |
in respect of the last day of any Interest Period, it gives the Agent not less than five (5) Business Days (or such shorter period as
the Majority Lenders may agree) prior notice; or |
|
9.3.2 |
at any other time, it gives the Agent not less than five (5) Business Days (or such shorter period as the Majority Lenders may agree)
prior notice, |
cancel the whole or any part (being a minimum amount of EUR 1,000,000 (or its equivalent))
of the Available Facility. Any cancellation under this Clause 9.3 shall reduce the Commitments of the Lenders rateably.
9.4 |
Voluntary prepayment of Loans |
The Borrower may, if it gives the Agent not less than thirty (30) Business Days (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum amount of EUR 1,000,000 (or its equivalent)).
9.5 |
Applications of Prepayments |
Prepayments made under this Clause 9 shall be applied as follows:
|
9.5.1 |
first, in prepayment of the Loans in order of maturity until repaid or prepaid in full; and |
|
9.5.2 |
second, in prepayment of the Bank Guarantees in accordance with the notice delivered under Clause 9.2 (Change of Control) or Clause
9.3 (Voluntary cancellation), as the case may be. |
- 32 -
9.6 |
Right of repayment and cancellation in relation to a single Lender |
|
(a) |
any sum payable to any Lender by the Borrower is required to be increased under Clause 14.2.3 (Tax gross-up); or |
|
(b) |
any Lender claims indemnification from the Borrower under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),
|
the Borrower may, whilst the circumstance giving rise to the requirement for that increase or
indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lenders participation in the Utilisations.
|
9.6.2 |
On receipt of a notice referred to in Clause 9.6.1(a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
|
9.6.3 |
On the last day of each Interest Period which ends after the Borrower has given notice under Clause 9.6.1(a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay that Lenders participation in that Utilisation. |
|
9.7.1 |
Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. Any such cancellation or prepayment shall oblige the Borrower to make the
cancellation or prepayment of the specified amount on the specified date. |
|
9.7.2 |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty. |
|
9.7.3 |
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid may be reborrowed in accordance with the terms of
this Agreement. |
|
9.7.4 |
The Borrower shall not repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in
the manner expressly provided for in this Agreement. |
|
9.7.5 |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
|
9.7.6 |
If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender,
as appropriate. |
- 33 -
SECTION 5
COSTS OF UTILISATIONS
10.1 |
Calculation of interest |
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the
applicable:
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period.
|
10.3.1 |
If the Borrower fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate of which is 2.0 per cent. higher than the rate which would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration reasonably selected by the Agent. |
|
10.3.2 |
If the Borrower fails to pay any interest payable by it under a Finance Document, it shall make a liquidated damages payment (pauschalierter
Schadensersatz) for all amounts of interest overdue equal to the amount which is payable by applying the rate to be determined in accordance with this Clause 10.3 on the amount of interest overdue for the period from the due date of the relevant
interest payment up to the date of actual payment (both before and after judgment), provided that the Borrower shall be free to prove that no damage has arisen, or that damage has not arisen in the asserted amount. |
|
10.3.3 |
Any interest accruing or damages payable under this Clause 10.3 shall be immediately payable by the Borrower on demand by the Agent.
|
|
10.3.4 |
Any further damages and indemnities shall be dealt with in accordance with Clause 16 (Other indemnities). |
10.4 |
Notification of rates of interest |
The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this
Agreement.
- 34 -
11.1 |
Selection of Interest Periods |
|
11.1.1 |
Unless the Borrower has selected an Interest Period in accordance with Clause 11.1.2 and Clause 11.1.3 below and subject to this Clause 11, each
Interest Period shall be one (1) Month. |
|
11.1.2 |
The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan. |
|
11.1.3 |
Subject to this Clause 11, the Borrower may select an Interest Period of one (1), three (3) or six (6) Months or any shorter period
agreed between the Borrower and the Agent (acting on the instructions of all the Lenders) which is required in order to align the interest period of such Loan with the interest period of any existing loan in order to ensure consolidation.
|
|
11.1.4 |
An Interest Period for a Loan shall not extend beyond the Termination Date. |
|
11.1.5 |
Each Interest Period for a Loan shall start on the Utilisation Date. |
|
11.1.6 |
A Loan has one Interest Period only. |
11.2 |
Consolidation of Loans |
If, prior to the expiry of the Availability Period, two or more Interest Periods end on the same date the Loans to which those
Interest Periods relate shall be consolidated into, and treated as, a single Loan on the last day of the relevant Interest Period.
11.3 |
Changes to Interest Periods |
|
11.3.1 |
Prior to determining the interest rate for a Utilisation, the Agent may shorten the Interest Period for any Loan to ensure that, when aggregated
with the Available Facility, there are sufficient Loans (with an aggregate amount equal to or greater than the Reduction Instalment) which have an Interest Period ending on a Reduction Date for the scheduled reduction to occur.
|
|
11.3.2 |
If the Agent makes any of the changes to an Interest Period referred to in this Clause 11.3, it shall promptly notify the Borrower and the Lenders.
|
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the
next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
12. |
CHANGES TO THE CALCULATION OF INTEREST |
12.1 |
Absence of quotations |
Subject to Clause 12.2 (Market disruption), if EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable EURIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.
- 35 -
|
12.2.1 |
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lenders share of that
Loan for the Interest Period shall be the rate per annum which is the sum of: |
|
(b) |
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select. |
|
12.2.2 |
In this Agreement Market Disruption Event means: |
|
(a) |
at or about noon on the Quotation Day for the relevant Interest Period EURIBOR is to be determined by reference to the Reference Bank and none or
only one of the Reference Banks supplies a rate to the Agent to determine EURIBOR for the relevant Interest Period; or |
|
(b) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders
(whose participations in a Loan exceed forty (40) per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of EURIBOR. |
12.3 |
Alternative basis of interest or funding |
|
12.3.1 |
If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest. |
|
12.3.2 |
Any alternative basis agreed pursuant to Clause 12.3.1 above shall, with the prior consent of all the Lenders and the Borrower, be binding on all
Parties. |
|
12.4.1 |
The Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any
part of a Loan or Unpaid Sum being paid by it on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. |
|
12.4.2 |
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs
for any Interest Period in which they accrue. |
- 36 -
|
13.1.1 |
The Borrower shall pay to the Agent (for the account of each Lender) a fee computed at the rate of 1.10 per cent. per annum on that
Lenders Available Commitment for the Availability Period. |
|
13.1.2 |
The accrued commitment fee is payable semi-annually in arrears on each 30 June and 31 December during the Availability Period, on the
last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lenders Commitment at the time the cancellation is effective. |
The Borrower shall pay to the Arranger an arrangement fee in the amount and at the times agreed in the mandate letter between
the Borrower and the Arranger dated 27 October 2014.
The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
The Borrower shall pay to the Original Lenders a participation fee as agreed in a Fee Letter.
13.5 |
Fees payable in respect of Bank Guarantees |
|
13.5.1 |
The Borrower shall pay to the Agent (for the account of each Issuing Bank) a Bank Guarantee fee at an annual rate of 2.25 per cent. on the
outstanding amount of each Bank Guarantee requested by it for the period from the issue of that Bank Guarantee until such Bank Guarantee is repaid or prepaid in full. This fee shall be distributed to the Issuing Banks according to the principal
amount of Bank Guarantees that each Issuing Bank has issued. |
|
13.5.2 |
The accrued Bank Guarantee fee on a Bank Guarantee shall be payable on the first day of each successive period of three (3) Months (or such
shorter period as shall end on the Expiry Date for that Bank Guarantee) starting on the date of issue of that Bank Guarantee. The accrued Bank Guarantee fee is also payable to the Agent on the cancelled amount of any Issuing Banks Commitment
in its capacity as Lender at the time the cancellation is effective if that Commitment is cancelled in full and the Bank Guarantee is prepaid or repaid in full. |
- 37 -
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. |
TAX GROSS UP AND INDEMNITIES |
|
14.1.1 |
In this Clause 14: |
Protected Party means a Finance Party that is or will be subject to any liability, or required to
make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
Tax Credit means a credit against, relief or remission for, or repayment of, any Tax.
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a
Finance Document, other than a FATCA Deduction.
Tax Payment means an increased payment made by
the Borrower to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).
|
14.1.2 |
In this Clause 14 a reference to determines or determined means a determination made in the absolute
discretion of the person making the determination. |
|
14.2.1 |
The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. |
|
14.2.2 |
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower.
|
|
14.2.3 |
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due shall be increased to an amount which (after making
any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. |
|
14.2.4 |
The Borrower is not required to make an increased payment to a Lender under Clause 14.2.3 above for a Tax Deduction in respect of tax imposed on a
payment of interest on a Loan, if on the date on which the payment falls due, the Borrower is able to demonstrate that the payment: |
|
(a) |
relates to a Tax referred to in Clause 14.3.2 (Tax indemnity); or |
- 38 -
|
(b) |
could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 14.2.7 below.
|
|
14.2.5 |
If the Borrower is required to make a Tax Deduction, it shall make that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by law. |
|
14.2.6 |
Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall
deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
|
14.2.7 |
The respective Finance Party and the Borrower shall, to the extent practicable, co-operate in completing any procedural formalities necessary for
the Borrower to obtain authorisation to make that payment without a Tax Deduction. |
|
14.3.1 |
The Borrower shall (within five (5) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or
cost that that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document. |
|
14.3.2 |
Clause 14.3.1 above shall not apply |
|
(a) |
with respect to any Tax assessed on a Finance Party: |
|
(i) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes; or |
|
(ii) |
under the law of the jurisdiction in which that Finance Partys Facility Office is located in respect of amounts received or receivable in
that jurisdiction, |
if in either case that Tax is imposed on or calculated by reference to the net
income or profit (or similar calculation) received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
(b) |
to the extent a loss, liability or cost relates to a FATCA Deduction required to be made by a Party. |
|
14.3.3 |
A Protected Party making, or intending to make, a claim pursuant to Clause 14.3.1 shall promptly notify the Agent of the event which will
give, or has given, rise to the claim following, which the Agent shall notify the Borrower. |
- 39 -
|
14.3.4 |
A Protected Party shall, on receiving a payment from the Borrower under this Clause 14.3, notify the Agent. |
|
14.4.1 |
If the Borrower makes a Tax Payment and the relevant Finance Party determines that: |
|
(a) |
a Tax Credit is attributable to that Tax Payment; and |
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit, |
the Finance Party shall pay an amount to the Borrower which that Finance Party determines will leave it (after that payment)
in the same after-Tax position as it would have been in had the Tax Payment not been made by the Borrower.
|
14.4.2 |
If such a Tax Credit by reference to which a Finance Party has made a payment to the Borrower under Clause 14.4.1(a) above is subsequently
disallowed or cancelled, the Borrower must reimburse any payment made under Clause 14.4.1(a) above to the relevant Finance Party. |
|
14.4.3 |
If the Borrower makes a Tax Payment, a Finance Party will be under no obligation whatsoever to claim a Tax Credit if in the opinion of that Finance
Party the making of such claim might have an adverse effect on its business, operations, property, condition or prospects (financial or otherwise). The Borrower shall bear any out of pocket costs reasonably incurred by a Finance Party in making such
a claim. |
The Borrower shall pay and, within five Business Days of demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
14.6.1 |
All consideration payable under a Finance Document by the Borrower to a Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Borrower shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT. |
|
14.6.2 |
Where a Finance Document requires the Borrower to reimburse a Finance Party for any costs or expenses, the Borrower shall also at the same time pay
and indemnify that Finance Party against all VAT incurred by that Finance Party in respect of the costs or expenses save to the extent that that Finance Party is entitled to repayment or credit in respect of the VAT. |
- 40 -
|
14.7.1 |
Subject to Clause 14.7.3 below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
|
|
(a) |
confirm to that other Party whether it is: |
|
(i) |
a FATCA Exempt Party; or |
|
(ii) |
not a FATCA Exempt Party; |
|
(b) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably
requests for the purposes of that other Partys compliance with FATCA; |
|
(c) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the
purposes of that other Partys compliance with any other law, regulation, or exchange of information regime. |
|
14.7.2 |
If a Party confirms to another Party pursuant to Clause 14.7.1(a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it
is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
|
14.7.3 |
Clause 14.7.1(a) above shall not oblige any Finance Party to do anything, and Clause 14.7.1(c) above shall not oblige any other Party to do
anything, which would or might in its reasonable opinion constitute a breach of: |
|
(a) |
any law or regulation; |
|
(b) |
any fiduciary duty; or |
|
(c) |
any duty of confidentiality. |
|
14.7.4 |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in
accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA
Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
|
14.7.5 |
If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation
require it, each Lender shall, within ten (10) Business Days of: |
|
(a) |
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; |
|
(b) |
the date a new US Tax Obligor accedes as a Borrower; or |
- 41 -
|
(c) |
where a Borrower is not a US Tax Obligor, the date of a request from the Agent, |
supply to the Agent:
|
(i) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or |
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender
under FATCA or that other law or regulation. |
|
14.7.6 |
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to
Clause 14.7.5 above to the relevant Borrower. |
|
14.7.7 |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to Clause
14.7.5 above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for
the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.
|
|
14.7.8 |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to
Clause 14.7.5 or 14.7.7 above without further verification. The Agent shall not be liable for any action taken by it under or in connection with Clauses 14.7.5, 14.7.6 or 14.7.7 above. |
|
14.8.1 |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no
Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
|
14.8.2 |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such
FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties. |
- 42 -
|
15.1.1 |
Subject to Clause 15.3 (Exceptions) the Borrower shall, within five (5) Business Days of a demand by the Agent, pay for the account of
a Finance Party the amount of any substantiated Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law
or regulation or (ii) compliance with any law or regulation made after the Effective Date. |
|
15.1.2 |
In this Agreement Increased Costs means: |
|
(a) |
a reduction in the rate of return from the Facility or on a Finance Partys (or its Affiliates) overall capital; |
|
(b) |
an additional or increased cost; or |
|
(c) |
a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
|
15.1.3 |
Basel III means: |
|
(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for
more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer
published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
|
(b) |
the rules for global systemically important banks contained in Global systemically important banks: assessment methodology and the additional
loss absorbency requirement Rules text published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
|
(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III. |
15.2 |
Increased cost claims |
|
15.2.1 |
A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Borrower. |
- 43 -
|
15.2.2 |
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
|
15.3.1 |
Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is: |
|
(a) |
attributable to a Tax Deduction required by law to be made by the Borrower; |
|
(b) |
attributable to a FATCA Deduction required to be made by a Party; |
|
(c) |
compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in 14.3.2 (Tax indemnity) applied); |
|
(d) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or |
|
(e) |
attributable to the implementation or application of or compliance with the International Convergence of Capital Measurement and Capital
Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the Effective Date (but excluding any amendment arising out of Basel III) (Basel II) or any other
law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates). |
|
15.3.2 |
In this Clause 15.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 14.1
(Definitions). |
16.1 |
Indemnities to the Finance Parties |
The Borrower shall, within five (5) Business Days of demand, indemnify each Finance Party against any cost, loss or
liability incurred by that Finance Party as a result of:
|
16.1.1 |
the occurrence of any Event of Default; |
|
16.1.2 |
a failure by the Borrower to pay any amount due under a Finance Document on its due date, including any cost, loss or liability arising as a result
of Clause 29 (Sharing among the Finance Parties); |
|
16.1.3 |
funding, or making arrangements to fund, its participation in a Utilisation requested by a Borrower in a Utilisation Request but not made by reason
of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or |
- 44 -
|
16.1.4 |
a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower. |
16.2 |
Indemnity to the Agent |
The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably)
as a result of:
|
16.2.1 |
investigating any event which it reasonably believes is a Default; |
|
16.2.2 |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
|
16.2.3 |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.
|
17. |
MITIGATION BY THE LENDERS |
|
17.1.1 |
Each Finance Party shall, in consultation with and the agreement of the Borrower, take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 14 (Tax gross-up and indemnities), Clause 15.1 (Increased costs) including
transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. |
|
17.1.2 |
Clause 17.1.1 above does not in any way limit the obligations of the Borrower under the Finance Documents. |
17.2 |
Limitation of liability |
|
17.2.1 |
The Borrower shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by
it under Clause 17.1 (Mitigation). |
|
17.2.2 |
A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it. |
18.1 |
Transaction expenses |
The Borrower shall, following satisfaction of all conditions of Utilisation, promptly on demand pay the Agent and the Arranger
the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:
|
18.1.1 |
this Agreement and any other documents referred to in this Agreement; and |
- 45 -
|
18.1.2 |
any other Finance Documents executed after the Effective Date. |
If the Borrower requests an amendment, waiver or consent the Borrower shall, within five (5) Business Days of demand,
reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.
The Borrower shall, within five (5) Business Days of demand, pay to each Finance Party the amount of all costs and
expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
- 46 -
SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
|
19.1.1 |
The Borrower makes the representations and warranties set out in this Clause 19 to each Finance Party on the Effective Date.
|
|
19.1.2 |
The Borrower acknowledges that the Finance Parties have entered into this Agreement in reliance on those representations and warranties.
|
|
(a) |
is duly incorporated and validly existing under the laws of the Federal Republic of Germany as limited liability company; and
|
|
(b) |
the place from which it is administered and where all managerial decisions are taken (tatsächlicher Verwaltungssitz) is located within
the Federal Republic of Germany. |
|
19.2.2 |
The Borrower has the power to own its assets. |
|
19.2.3 |
The Borrower has all material Authorisations necessary to carry on its business as it is being conducted, except as would not have a Material
Adverse Effect. |
The obligations expressed to be assumed by it in each Finance Document are legal, valid, binding and enforceable obligations
subject to and limited by the provisions of any applicable bankruptcy, insolvency, liquidation, reorganisation, moratorium or other laws of general application from time to time in effect relating to or affecting the creditors rights and
remedies generally.
19.4 |
Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not
conflict with:
|
19.4.1 |
any law or regulation applicable to it; |
|
19.4.2 |
its or any of its Subsidiaries constitutional documents; or |
|
19.4.3 |
any material agreement or material instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries assets
(other than any such agreements, instruments or assets that form part of or are related to the facilities agreements being paid out and discharged by virtue of the Refinancing); |
- 47 -
where, in respect of Clause 19.4.1 above or Clause 19.4.2 above, such
non-performance or conflict might reasonably be expected to have a Material Adverse Effect.
It has the corporate power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
19.6 |
Validity and admissibility in evidence |
All Authorisations required to enable it lawfully to enter into, exercise its rights and comply with its obligations in the
Finance Documents to which it is a party have been obtained or effected and are in full force and effect.
As at the date hereof, it is not required under the law of its jurisdiction of incorporation or establishment, any jurisdiction
in which it carries on business or any jurisdiction in which it is tax resident to make any deduction for or on account of Tax from any payment it may make under any Finance Document.
|
19.8.1 |
No Event of Default is continuing or would be expected to result from the making of any Utilisation. |
|
19.8.2 |
No other event or circumstance is outstanding which constitutes a default (howsoever defined) under any other agreement or instrument which is
binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries) assets are subject would have a Material Adverse Effect. |
19.9 |
No misleading information |
|
19.9.1 |
Any factual information provided by the Borrower for the purposes of any Permitted Transaction was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is stated. |
|
19.9.2 |
All financial projections contained in the Financial Model were prepared or made in good faith and on the basis of assumptions believed by the
Borrower to be reasonable. |
|
19.9.3 |
So far as it is aware after reasonable enquiries, all other written information provided by the Borrower to a Finance Party was true, complete and
accurate in all material respects as at the date it was provided and, in light of the circumstances at the time or as at the date (if any) at which it is stated, except as may be superseded by subsequent written information provided to such Finance
Party, is not misleading in any material respect. |
- 48 -
19.10 |
Financial statements |
Its most recent financial statements (delivered in accordance with Clause 20.1 (Financial statements) fairly and
truly represent its financial condition and operations during the relevant financial year in all material respects.
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured
and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
19.12 |
No proceedings pending |
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely
determined, would reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started against it or any of its Subsidiaries.
It maintains the Insurances on and in relation to its business and assets with reputable underwriters or insurance companies
and such insurance is in full effect.
19.14 |
Good title to assets |
It and each of its Subsidiaries has good and valid title to, or valid leases or licences of, the assets reasonably necessary to
carry on its business in all material respects as presently conducted.
19.15 |
Environmental compliance |
|
19.15.1 |
It and each of its Subsidiaries has obtained all requisite Environmental Licences required for the carrying on of its business as currently
conducted and has at all times complied with: |
|
(a) |
all applicable Environmental Laws; and |
|
(b) |
the terms and conditions of such Environmental Licences, |
where failure to do so might reasonably be expected to have a Material Adverse Effect.
19.16 |
Environmental Claims |
No Environmental Claim which, if determined against it or any of its Subsidiaries, would reasonably be expected to have a
Material Adverse Effect has (to the best of its knowledge and belief) been started against it or any of its Subsidiaries.
- 49 -
|
19.17.1 |
It and each of its Subsidiaries has duly and punctually paid and discharged all Taxes imposed upon it or its assets or, as the case may be, upon
such Subsidiary or the assets of such Subsidiary within the time period allowed without incurring penalties (save to the extent that (i) payment is being contested in good faith by appropriate proceedings and for which adequate reserves have
been provided in accordance with GAAP and (ii) payment can be lawfully withheld) and to the extent that any Taxes are not due and payable, the Borrower has provided adequate reserves for the payment of those Taxes in accordance with GAAP.
|
|
19.17.2 |
It and each of its Subsidiaries is not materially overdue in the filing of any Tax returns. |
|
19.17.3 |
No claims are being or are reasonably likely to be asserted against it or any of its Subsidiaries with respect to Taxes which might reasonably be
expected to have a Material Adverse Effect. |
The Borrower has no any Financial Indebtedness other than Permitted Indebtedness.
Save for any Permitted Encumbrances, no Security exists over any of the assets of the ZSG Group.
19.20 |
Consents etc. relating to any Permitted Transaction |
All material Authorisations which are required to be obtained under any applicable law or regulation for the consummation of
each Permitted Transaction (including approval from shareholders, third parties and all applicable competition and anti-trust regulations authorities) have been obtained and are in full force and effect and all conditions of any such Authorisation
have been complied with or will be complied with in all material respects.
|
19.21.1 |
The Repeating Representations are deemed to be made by the Borrower by reference to the facts and circumstances then existing on the date of each
Compliance Certificate and the date of each Utilisation Request. |
|
19.21.2 |
Each Repeating Representations to be made after the Effective Date shall be made or deemed to be made by reference to the facts and circumstances
existing at the date the Repeating Representations is made. |
20. |
INFORMATION UNDERTAKINGS |
The undertakings in this Clause 20 remain in force from the Effective Date for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
- 50 -
20.1 |
Financial statements |
The Borrower shall supply to the Agent in sufficient copies for all the Lenders:
|
20.1.1 |
as soon as they become available, but in any event within ninety (90) days of the end of its financial years Mercers audited
consolidated financial statements (including balance sheet, profit and loss statement, cash flow statement and related auditors report), according to US-GAAP; |
|
20.1.2 |
as soon as they become available, but in any event within ninety (90) days of the end of its financial years the balance sheet, profit and
loss statement, cash flow statement with respect to each of the members of the ZSG Group and SP Holding and, with respect to each of the members of the ZSG Group, the related auditors report for such financial year by a recognised firm of
independent auditors licensed to practise in the Federal Republic of Germany, according to GAAP; |
|
20.1.3 |
as soon as they become available, but in any event within ninety (90) days of the end of its financial years the audited consolidated balance
sheet, consolidated profit and loss statement, consolidated cash flow statement and related auditors report for the ZSG Group for such financial year audited by a recognised firm of independent auditors licensed to practise in the Federal
Republic of Germany, according to GAAP and reconciled to US GAAP; |
|
20.1.4 |
as soon as they become available, but no later than forty-five (45) days after the end of each financial quarter year, the consolidated
balance sheet, consolidated profit and loss statement and consolidated cash flow statement for the ZSG Group for such period, which will be in a form reasonably acceptable to the Lenders, according to US-GAAP; |
|
20.1.5 |
thirty (30) days prior to the beginning of the relevant financial year, the budgeted consolidated balance sheet, the budgeted consolidated
profit and loss statement and the budgeted consolidated cash flow statement including budgeted consolidated capital expenditure for the next following financial year for the ZSG Group according to US GAAP and supported by the updated Financial
Model; and |
|
20.1.6 |
any financial statements delivered in accordance with Clause 20.1.4 above and Clause 20.1.3 above shall be accompanied by the production report for
the respective period, including, inter alia, actual production figures, operating cost figures, sales and sales price figures and the budgeted figures thereof. |
20.2 |
Compliance Certificate |
|
20.2.1 |
The Borrower shall supply to the Agent semi-annually beginning on 30 June 2015, with the set of financial statements then delivered
pursuant to Clause 20.1.3 (Financial statements) and Clause 20.1.4 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenants) as at the
date as at which those financial statements were drawn up. |
- 51 -
|
20.2.2 |
Each Compliance Certificate shall be signed by one director of the Borrower. |
|
20.2.3 |
In case of a dispute between the Agent and the Borrower in respect to the data or computations set out in the Compliance Certificate the Agent may
request an independent auditor to certify such data and calculations. |
20.3 |
Requirements as to financial statements |
|
20.3.1 |
Each set of financial statements delivered pursuant to Clause 20.1 (Financial statements) shall be certified by a director of the relevant
company as fairly representing its financial condition in all material respects as at the date as at which those financial statements were drawn up. |
|
20.3.2 |
The Borrower will at the request of the Agent require and authorise its auditors to discuss with the Lenders matters reasonably related to or
arising out of the annual audit of the Borrower by such auditors. |
20.4 |
Information: miscellaneous |
The Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):
|
20.4.1 |
promptly, the details of any newly created Permitted Encumbrances of ZSG Group (save for the creation of any Security in accordance with paragraph
(b) of the definition of Permitted Encumbrances); |
|
20.4.2 |
promptly, upon the request of the Agent, a certified copy of any agreement with any other Subsidiary of the Ultimate Parent; |
|
20.4.3 |
promptly, the details of any newly created Permitted Indebtedness of ZSG Group; |
|
20.4.4 |
promptly upon becoming aware of it, the details of any tax field audit (Betriebsprüfung) which is current, threatened or pending
against it which would, if adversely determined, have a Material Adverse Effect; |
|
20.4.5 |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or
pending against it, and which would, if adversely determined, have a Material Adverse Effect; and |
|
20.4.6 |
promptly, the details of any change of its constitutional documents or any Transaction Document. |
- 52 -
20.5 |
Notification of default |
The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence.
|
20.6.1 |
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website
Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Agent (the Designated Website) if: |
|
(a) |
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
|
(b) |
both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
|
(c) |
the information is in a format previously agreed between the Borrower and the Agent. |
If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically then the
Agent shall notify the Borrower accordingly and the Borrower shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event SP Holding and the Borrower shall supply the Agent with at least one
copy in paper form of any information required to be provided by them.
|
20.6.2 |
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following
designation of that website by the Borrower and the Agent. |
|
20.6.3 |
The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if: |
|
(a) |
the Designated Website cannot be accessed due to technical failure; |
|
(b) |
the password specifications for the Designated Website change; |
|
(c) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
|
(d) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
|
(e) |
the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
If the Borrower notifies the Agent under Clause 20.6.3(a) above or Clause 20.6.3(e) above, all
information to be provided by SP Holding and/or the Borrower under this Agreement after the date of that notice shall be supplied in paper form.
- 53 -
|
20.6.4 |
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted
onto the Designated Website. The Borrower shall comply with any such request within ten (10) Business Days. |
20.7 |
Know your customer checks |
|
(a) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Effective
Date; |
|
(b) |
any change in the status of the Borrower after the Effective Date; or |
|
(c) |
a proposed assignment or assignment and transfer by assumption of contract (Vertragsübernahme) by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such assignment or assignment and transfer by assumption of contract (Vertragsübernahme), |
obliges the Agent or any Lender (or, in the case of Clause 20.7.1(c) above, any prospective New Lender) to comply with
know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause 20.7.1(c) above, on behalf of any prospective
New Lender) in order for the Agent, such Lender or, in the case of the event described in Clause 20.7.1(c) above, any prospective New Lender to carry out and be satisfied it has complied with all necessary know your customer or other
similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20.7.2 |
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents. |
20.8 |
German Banking Act (Kreditwesengesetz) |
Upon request of the Agent, the Borrower shall provide the Agent with all such further information about its financial and
business affairs, as well as the financial and business affairs of any of its Subsidiaries, in each case to the extent necessary for any Lender to comply with its duties under section 18 of the German Banking Act (Kreditwesengesetz).
- 54 -
21.1 |
Financial definitions |
|
21.1.1 |
In this Clause 21: |
Calculation Date means each 30 June and 31 December in each calendar year commencing with
30 June 2015;
Current Assets means, on any date, the aggregate of the current assets of the
Borrower at such date;
Current Liabilities means, on any date, the aggregate of the current
liabilities of the Borrower at such date;
Current Ratio means, on any date, the ratio, expressed as a
percentage, of:
to
EBITDA means the net profit of ZSG Group before deducting any negative or adding any positive extraordinary
or unusual items according to US-GAAP,
|
(a) |
plus the amount of taxes set against the net profits of ZSG Group in its relevant consolidated financial statements and (without double counting)
any provision by ZSG Group for taxes, |
|
(b) |
plus any amortisation and depreciation stated in the relevant consolidated financial statements, |
|
(c) |
plus any interest expense as recorded in the profit and loss statement for the respective period, |
|
(d) |
plus any other non-cash charges set against the net profits of the Borrower in the relevant financial statements (including but not limited to
non-cash exchange rate gains or losses, non-cash effluent charges). |
Interest Cover
Ratio means, for any period on any Calculation Date, the ratio, expressed as a percentage, of:
|
(a) |
EBITDA for such period, |
to
|
(b) |
Interest Expense for such period; |
- 55 -
Interest Expense means, for any period, the consolidated
amount in EUR which will be necessary in order to pay in full all interest, premium and similar amounts (howsoever characterised and including (a) the interest element of capital leases, (b) interest on Subordinated Liabilities to the
extent transferred to the Shareholder Distribution Account, (c) repayment and prepayment of Subordinated Liabilities to the extent transferred to the Shareholder Distribution Account minus all amounts retransferred from the Shareholder
Distribution Account back to those operating accounts of the Borrower which are not restricted (d) discount and acceptance fees payable (or deducted), (e) fees payable in connection with the issue or maintenance of any bank guarantee,
(f) periodical payments under the Hedging Agreement (but excluding non-cash interest attributable to the movement in its mark to market valuation in accordance with US-GAAP) and (g) commitment, utilisation and non-utilisation fees payable
or incurred in respect of Financial Indebtedness) accruing in respect of, this agreement and all other Financial Indebtedness of ZSG Group which have become due and payable during such period but excluding amortisation and write-offs of debt issue
costs;
Leverage Ratio means the ratio of Net Debt to EBITDA;
Net Debt means, on any date, the excess of:
the sum of (without duplication):
the principal amount of Utilisations outstanding on such date;
the principal amount of other Financial Indebtedness (except exposure under the Hedging Agreement and liabilities from
operating lease) of the ZSG Group outstanding on such date;
less
Unencumbered Cash at such date. For the avoidance of doubt, Subordinated Liabilities shall be excluded from Net Debt;
Unencumbered Cash means, at any date, the principal amount of freely available cash balances maintained by
the ZSG Group in bank accounts maintained with financial institutions located in approved locations on such date (and, for the avoidance of doubt, a cash balance shall not be freely available if it is subject to any lien in favour of any third party
(excluding, however, any such lien arising by way of set-off rights under mandatory principles of applicable law) and except for an amount standing to the credit of the Shareholder Distribution Account.
The Borrower shall ensure that the Leverage Ratio in respect of any twelve (12) months period on any Calculation Date
shall not exceed 2.50:1.
- 56 -
21.3 |
Interest Cover Ratio |
The Borrower shall ensure that the Interest Cover Ratio in respect of each twelve (12) months period on any Calculation
Date shall equal or exceed 1.20:1.
The Borrower shall ensure that the Current Ratio on any Calculation Date shall equal or exceed 110 per cent.
It is agreed that all Financial Covenants have to be calculated on the basis of consolidated financial figures according to
US-GAAP and on the basis of consolidated Financial Statements supplied in accordance with Clause 21.1 and on a rolling 12 months basis.
The undertakings in this Clause 22 remain in force from the Effective Date for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
The Borrower shall promptly:
|
22.1.1 |
obtain, comply with and do all that is necessary to maintain in full force and effect; and |
|
22.1.2 |
supply certified copies to the Agent of, |
any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
22.2 |
Compliance with laws |
The Borrower shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially
impair its ability to perform its obligations under the Finance Documents.
|
22.3.1 |
The Borrower shall at all times effect and maintain the Insurances on and in relation to its business and assets with reputable underwriters or
insurance companies. |
|
22.3.2 |
The Borrower shall pay all premiums and do all other things necessary to keep on foot the insurances required to be effected and maintained by it
pursuant to Clause 22.3.1 above. |
- 57 -
22.4 |
Transactions with third parties |
The Borrower shall and shall ensure that each member of the ZSG Group will conclude any transaction with a third party,
irrespective of whether or not it is a Subsidiary of the Ultimate Parent, only on terms reasonably no less favourable to it than those that could reasonably be obtainable by it on an arms length basis. It will further waive any Financial
Indebtedness owed by any person to it only for valuable market consideration.
The Borrower shall ensure that its payment obligations under the Finance Documents will rank at least pari passu with
the claims of all its unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
22.6 |
Environmental compliance |
The Borrower shall and shall procure that each member of the ZSG Group will obtain and maintain all requisite Environmental
Licences and comply with:
|
(a) |
all applicable Environmental Laws; or |
|
(b) |
the terms and conditions of all Environmental Licences applicable to it, |
and take all reasonable steps in anticipation of known or expected future changes to or obligations under the same, in each
case where failure to do so might reasonably be expected to have a Material Adverse Effect.
22.7 |
Environmental Claims |
The Borrower shall inform the Agent in writing as soon as reasonably practicable upon its becoming aware of:
|
22.7.1 |
any Environmental Claim which has been commenced or threatened against a member of ZSG Group; or |
|
22.7.2 |
any facts or circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against a member
of ZSG Group, |
where the claim, if determined against a member of ZSG Group, would be expected to have a
Material Adverse Effect.
|
22.8.1 |
The Borrower shall (and shall procure that each member of the ZSG Group will) duly and punctually pay and discharge all Taxes imposed upon it or
its assets within the time period allowed without incurring penalties (save to the extent that (i) payment is being contested in good faith, (ii) adequate reserves are being maintained for those Taxes and (iii) payment can be lawfully
withheld). |
- 58 -
|
22.8.2 |
The Borrower shall not be materially overdue in the filing of any Tax returns. |
The Borrower will procure that all acts and things (including the execution of powers of attorney, assignments or other
instruments) as are reasonably required to give effect to the purposes of the Refinancing are, or will promptly be, done (and do nothing to jeopardise the same).
The Borrower shall ensure that, at all times after the Effective Date, it and each of its Subsidiaries have sufficient equity
to be and remain in compliance with all thin capitalisation rules applicable to it and them.
The Borrower shall not (and shall procure that no other member of the ZSG Group will) create or permit to subsist any Security
over all or any of its assets other than Permitted Encumbrances.
|
22.12.1 |
Except as permitted under Clause 22.12.2, the Borrower shall not (and shall procure that no other member of the ZSG Group will), enter into a
single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset, including any material investment (Beteiligungen) or divisions
(Betriebsteile). |
|
22.12.2 |
Clause 22.12.1 above does not apply to any sale, lease, transfer or other disposal: |
|
(a) |
made in the ordinary course of business of the disposing entity; |
|
(b) |
of assets in exchange for other assets comparable or superior as to type, value and quality; |
|
(c) |
of assets that are worn out, obsolete or redundant; |
|
(d) |
which is a Permitted Transaction; |
|
(e) |
to which the Majority Lenders have given their prior written consent; or |
|
(f) |
where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or consideration receivable
for any other sale, lease, transfer or other disposal, other than any permitted under Clause 22.12.2(a), Clause 22.12.2(b) and Clause 22.12.2(c) above) does not exceed EUR 15,000,000 (or its equivalent in another currency or currencies) in
any financial year. |
- 59 -
22.13 |
Financial Indebtedness |
The Borrower shall not (and shall procure that no other member of the ZSG Group will) incur, create or permit to subsist or
have outstanding, and any Financial Indebtedness or enters into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than, in each case, Permitted Indebtedness.
22.14 |
Treasury Transactions |
|
22.14.1 |
The Borrower shall not (and shall procure that no other member of the ZSG Group will) enter into any Treasury Transaction, other than the hedging
transaction and documented by the Hedging Agreement. |
|
22.14.2 |
The Borrower shall ensure that the Hedging Agreement is not terminated, varied or cancelled without the prior consent of the Agent (acting on the
instructions of the Majority Lenders), save (in the case of arrangements documented by the Hedging Agreement) as permitted by the Security Pooling Agreement. |
22.15 |
Merger; agreement on profit |
The Borrower shall not enter into:
|
22.15.1 |
any amalgamation, demerger, merger, consolidation or corporate reconstruction or any transaction with the commercial effect of the foregoing; or
|
|
22.15.2 |
any profit and loss transfer agreement (Ergebnisabführungsvertrag) (other than the existing profit and loss agreements between the
Borrower and ZSG Holz and ZSG Transport, respectively), any partnership agreements (stille Beteiligungen), any other intercompany agreement (Unternehmensvertrag) or any similar arrangement having as a consequence that a third party
shares in the Borrowers profits, |
in each case other than:
|
(a) |
a Permitted Transaction; |
|
(b) |
with the prior written consent of the Majority Lenders. |
The Borrower shall not (and shall procure that no other member of the ZSG Group will) without the prior written consent of the
Agent acquire any assets (separately or in a series of related acquisitions):
|
22.16.1 |
the aggregate value of which exceeds EUR 20,000,000; and |
|
22.16.2 |
that the funding of which is fully or partially provided for by the proceeds of a Loan. |
- 60 -
|
22.17.1 |
Except as permitted under Clause 22.17.2 below, the Borrower shall not (and shall procure that no other member of the ZSG Group will):
|
|
(a) |
enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture having a value in
excess of EUR 1,000,000; or |
|
(b) |
transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the
solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing). |
|
22.17.2 |
Clause 22.17.1 above does not apply to any acquisition (or agreement to acquire) any interest in a Joint Venture or transfer of assets (or
agreement to transfer assets) to a Joint Venture or loan made to or guarantee given in respect of the obligations of a Joint Venture if such transaction is a Permitted Transaction. |
The Borrower shall not (and shall procure that no other member of the ZSG Group will), make any substantial change to the
general nature of its business from that carried on at the Effective Date.
The Borrower shall not (and shall procure that no other member of the ZSG Group will) without the prior consent of the Majority
Lenders:
|
22.19.1 |
redeem, purchase, return or make any repayment in respect of any of its share capital or make any capital distribution or enter into any agreement
to do so; or |
|
22.19.2 |
issue any shares or grant any person any right (whether conditional or unconditional) to call for the issue or allotment of any of its shares
(including an option or a right of pre-emption or conversion) or enter into any agreement to do any of the foregoing, |
in each case, other than in accordance with the terms hereof (including Clause 22.18 (Subordinated Liabilities)) and the
terms of the Shareholders Undertaking Agreement.
22.20 |
Dividends and withdrawals |
The Borrower shall not pay dividends and any other returns to any of its investors (including in relation to any debt
instruments) other than in accordance with the terms hereof and the terms of the Shareholders Undertaking Agreement.
- 61 -
22.21 |
Subordinated Liabilities |
The Borrower shall not pay any funds into the Shareholder Distribution Account on account of interest on Shareholder Loans,
except in compliance with Section 1.5.3 hereof.
Each of the events or circumstances set out in Clause 23 is an Event of Default.
The Borrower does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency
in which it is expressed to be payable unless:
|
23.1.1 |
its failure to pay is caused by administrative or technical error; and |
|
23.1.2 |
payment is made within ten (10) Business Days of its due date. |
Any requirement of Clause 21 (Financial covenants) is not satisfied.
23.3 |
Provision of Security |
The Condition Precedent for the legal validity and effectiveness of and as defined in each of the Security Documents has not
been fulfilled within five (5) Business Days of the Effective Date.
|
23.4.1 |
The Borrower does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) and
Clause 23.2 (Financial covenants)). |
|
23.4.2 |
The Borrower does not comply with any provision of any Security Document. |
|
23.4.3 |
No Event of Default under Clause 23.4.1 above and Clause 23.4.2 above will occur if: |
|
(a) |
the Agent considers that the relevant non-compliance is capable of remedy; and |
|
(b) |
the relevant non-compliance is remedied within twenty (20) Business Days of the earlier of (i) the Agent giving notice to the Borrower
and (ii) the date on which the Borrower became aware or ought reasonably to have become aware of such non-compliance. |
Any representation or statement made or deemed to be made by the Borrower in the Finance Documents or any other document
delivered by or on behalf of the Borrower under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
- 62 -
|
23.6.1 |
Any Financial Indebtedness of the Borrower is not paid when due nor within any originally applicable grace period. |
|
23.6.2 |
Any Financial Indebtedness of the Borrower is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an
event of default (however described). |
|
23.6.3 |
Any commitment for any Financial Indebtedness of the Borrower is cancelled or suspended by a creditor of the Borrower as a result of an event of
default (however described). |
|
23.6.4 |
Any creditor of the Borrower becomes entitled to declare any Financial Indebtedness of the Borrower due and payable prior to its specified maturity
as a result of an event of default (however described). |
|
23.6.5 |
No Event of Default will occur under this Clause 23.6 if: (i) the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within Clause 23.6.1 above to Clause 23.6.4 above is less than EUR 10,000,000 (or its equivalent in any other currency or currencies) at any one time; or (ii) any event or circumstance that would otherwise give rise
to, or cause an Event of Default to occur, under Clause 23.6.1 to 23.6.4 above is disputed in good faith by the Borrower affected thereby by way of appropriate proceedings. |
If the Borrower:
|
23.7.1 |
is unable to pay its debts as they fall due (Zahlungsunfähigkeit); |
|
23.7.2 |
commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or, for
any of the reasons set out in sections 17 to 19 of the German Insolvency Act (InsO); |
|
23.7.3 |
files for insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or the board of directors or management of the Borrower is
required by law to file for insolvency; or |
|
23.7.4 |
the competent court takes any of the actions set out in section 21 of the German Insolvency Act (InsO) or the competent court institutes
insolvency proceedings against the Borrower (Eröffnung des Insolvenzverfahrens). |
- 63 -
23.8 |
Insolvency and similar proceedings |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
23.8.1 |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of the Borrower; |
|
23.8.2 |
the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of the
Borrower or any of its assets (including the directors of the Borrower requesting a person to appoint any such officer in relation to it or any of its assets); or |
|
23.8.3 |
enforcement of any Security over any assets of the Borrower which is not discharged within thirty (30) days, |
or any analogous procedure or step is taken in any jurisdiction.
23.9 |
Execution or distress |
Any execution (Zwangsvollstreckung) or distress (Beschlagnahme) (or any event which under the laws of any other
jurisdiction that has a similar effect) is levied against, or an encumbrancer takes possession of the whole, or any material part, of the assets of the Borrower is not discharged within thirty (30) days.
23.10 |
Shareholders Undertaking Agreement |
|
23.10.1 |
The Ultimate Parent or SP Holding fails to comply with the provisions of, or does not perform its respective obligations under, the
Shareholders Undertaking Agreement. |
|
23.10.2 |
No Event of Default will occur under this Clause 23.10 if |
|
(a) |
the Agent considers that the relevant non-compliance or non-performance is capable of remedy; and |
|
(b) |
the relevant non-compliance or non-performance is remedied within twenty (20) Business Days of the earlier of (i) the Agent giving notice
to the Ultimate Parent or SP Holding, as the case may be, and (ii) the date on which the Ultimate Parent or SP Holding, as the case may be, became aware or ought reasonably to have become aware of such non-compliance or non-performance.
|
|
23.10.3 |
A representation or warranty given by the Ultimate Parent or SP Holding in the Shareholders Undertaking Agreement is incorrect in any
material respect and, if the non-compliance or circumstances giving rise to such misrepresentation are capable of remedy, it is not remedied within thirty (30) days of the earlier of the Agent giving notice to the Ultimate Parent or the
Ultimate Parent becoming aware of the non-compliance or misrepresentation. |
- 64 -
23.11 |
Cessation of business |
The Ultimate Parent suspends or ceases to carry on all or a material part of its business except as a result of a disposal
which is a Permitted Transaction.
23.12 |
Audit qualification |
Any of the auditors qualify their opinion with respect to any of the financial statements audited by them and delivered under
Clause 20.1 (Financial statements).
The authority or ability of the Borrower to conduct its business is wholly or substantially curtailed by any seizure,
expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other person in relation to the Borrower.
23.14 |
Repudiation and rescission of agreements |
|
23.14.1 |
the Borrower (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the
Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security. |
|
23.14.2 |
Any party to the Transaction Documents (other than a Finance Party) rescinds or purports to rescind or repudiates or purports to repudiate any of
those agreements or instruments in whole or in part where to do so has or is, in the reasonable opinion of the Majority Lenders, likely to have a Material Adverse Effect. |
Any litigation, alternative dispute resolution, arbitration, administrative, governmental, regulatory or other investigations,
proceedings or disputes are commenced in relation to the Transaction Documents or the transactions contemplated in the Transaction Documents or against a member of the ZSG Group which has or would have a Material Adverse Effect.
A Change of Control occurs.
It is or becomes unlawful for the Borrower to perform any of its obligations under the Transaction Documents.
23.18 |
Environmental matters |
|
23.18.1 |
Any Environmental Contamination is discovered on any site owned, leased, occupied or used by a member of the ZSG Group which might reasonably be
expected to have a Material Adverse Effect. |
- 65 -
|
23.18.2 |
A member of the ZSG Group fails to comply with any Environmental Law or any Environmental Licence or an Environmental Claim is made against a
member of the ZSG Group and as a result a Material Adverse Effect occurs. |
23.19 |
Material Adverse Effect |
Any situation or event occurs or series of events occur which has a Material Adverse Effect.
At any time after the occurrence of (i) an Event of Default set out in Clause 23.1 (Non-payment), Clause 23.2
(Financial covenants), Clause 23.7 (Insolvency), Clause 23.8 (Insolvency and similar proceedings), Clause 23.9 (Execution or distress) in relation to the Borrower and Clause 23.17 (Unlawfulness) or
(ii) any other Event of Default and at any time thereafter while such Event of Default is continuing and either the Agent, or as the case may be, the Majority Lenders has or have determined in its or their reasonable opinion taking into account
the enforcement value of any guarantee and Security, that due to said Event of Default the ability of the Borrower to perform any of its obligations under the Finance Documents has been materially impaired and/or the Agent or the Majority Lenders
have given consideration to the reasonable concerns of the Borrower and to avoid such notice, the Agent may, and will if so directed by the Majority Lenders, by written notice to the Borrower do all or any of the following in addition and without
prejudice to any other rights or remedies which it or any other Finance Party may have under this Agreement or any of the other Finance Documents:
|
23.20.1 |
cancel the Total Commitments whereupon they shall immediately be cancelled; |
|
23.20.2 |
declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due and payable; |
|
23.20.3 |
declare that all or part of the Utilisations be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders; |
|
23.20.4 |
require the Borrower to: |
|
(a) |
procure that the liabilities of each of the Lenders and any Issuing Bank under or in connection with each Bank Guarantee are promptly reduced to
zero; or |
|
(b) |
provide cash collateral for each Bank Guarantee in an amount specified by the Agent and in the currency of that Bank Guarantee, whereupon the
Borrower will do so; and/or |
|
(c) |
exercise all or any of its rights, remedies, powers or discretions under any of the Finance Documents. |
- 66 -
If all or part of the Loans and/or the Bank Guarantees have become due and payable on demand pursuant to Clause 23.20
(Acceleration), the Agent, if so instructed by the Majority Lenders, shall by notice to the Borrower call for repayment and discharge of all or such part of the Loans and/or the Bank Guarantees on such date as may be specified in such notice
whereupon all or such part of the Loans and/or the Bank Guarantees shall become due and payable and/or, as appropriate, due for discharge on the date so specified together with all interest, ancillary and other fees and commitment commission accrued
and all other sums payable under the Finance Documents.
- 67 -
SECTION 8
CHANGES TO PARTIES
24. |
CHANGES TO THE LENDERS |
24.1 |
Assignments and assignments and transfers by assumption of contract (Vertragsübernahme) by the Lenders
|
|
24.1.1 |
Subject to this Clause 24, a Lender (the Existing Lender) may: |
|
(a) |
assign any of its rights; or |
|
(b) |
assign and transfer by assumption of contract (Vertragsübernahme) any of its rights and obligations under any Finance Document,
|
to another bank or financial institution or to a trust, fund or other entity which is regularly engaged
in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New Lender), provided that no such assignment or assignment and transfer by assumption of contract
(Vertragsübernahme) shall be permitted to any person that competes with or operates in a business reasonably similar to that of the Borrower.
|
24.1.2 |
Subject to Clause 24.2 (Conditions of assignment and assignment and transfer by assumption of contract (Vertragsübernahme)), each Party
hereby gives its consent in advance to any assignment and assignment and transfer by assumption of contract (Vertragsübernahme) as referred to in Clause 24.1.1 above. Receipt of an Assignment and Assumption Certificate by the Agent shall
constitute notice of the assignment and assignment and transfer by assumption of contract (Vertragsübernahme) and each Party irrevocably authorises (bevollmächtigt) and instructs the Agent to receive each such notice on its
behalf and irrevocably agrees that each such notice to be given to such party may be given to the Agent. |
|
24.1.3 |
For the purposes of this Clause 24.1 each Finance Party, which is incorporated or established under the laws of the Federal Republic of Germany
hereby releases the Agent from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible
to such Finance Party. A Finance Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly. |
24.2 |
Conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)
|
The consultation with the Borrower is required for an assignment or assignment and transfer by
assumption of contract (Vertragsübernahme) by an Existing Lender, unless the assignment or assignment and transfer by assumption of contract (Vertragsübernahme) is to another Lender or an Affiliate of a Lender.
- 68 -
|
24.2.1 |
An assignment will only be effective on: |
|
(a) |
receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume
the same obligations to the other Finance Parties as it would have been under if it was an Existing Lender; and |
|
(b) |
performance by the Agent of all know your customer or other checks relating to any person that it is required to carry out in relation
to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. |
|
24.2.2 |
An assignment and transfer by assumption of contract (Vertragsübernahme) will only be effective if the procedure set out in Clause 24.5
(Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) is complied with. |
|
(a) |
a Lender assigns or assigns and transfers by assumption of contract (Vertragsübernahme) any of its rights or obligations under the
Finance Documents or changes its Facility Office; and |
|
(b) |
as a result of circumstances existing at the date the assignment, assignment and transfer by assumption of contract (Vertragsübernahme)
or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased costs), |
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those clauses
to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, assignment and transfer by assumption of contract (Vertragsübernahme) or change had not occurred.
24.3 |
Assignment or assignment and transfer by assumption of contract (Vertragsübernahme) fee |
The New Lender shall, on the date upon which an assignment or assignment and transfer by assumption of contract
(Vertragsübernahme) takes effect, pay to the Agent (for its own account) a fee of EUR 2,000.
24.4 |
Limitation of responsibility of Existing Lenders |
|
24.4.1 |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(a) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; |
|
(b) |
the financial condition of the Borrower; |
- 69 -
|
(c) |
the performance and observance by the Borrower of its obligations under the Finance Documents or any other documents; or |
|
(d) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
and any representations or warranties implied by law are excluded.
|
24.4.2 |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
|
(a) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of the Borrower and
its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and |
|
(b) |
will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in force. |
|
24.4.3 |
Nothing in any Finance Document obliges an Existing Lender to: |
|
(a) |
accept a re-transfer from a New Lender of any of the rights and obligations assigned or assigned and transferred by assumption of contract
(Vertragsübernahme) under this Clause 24; or |
|
(b) |
support any losses directly or indirectly incurred by the New Lender by reason of the nonperformance by the Borrower of its obligations under the
Finance Documents or otherwise. |
24.5 |
Procedure for assignment and transfer by assumption of contract (Vertragsübernahme) |
|
24.5.1 |
Subject to the conditions set out in Clause 24.2 (Conditions of assignment or assignment and transfer by assumption of contract
(Vertragsübernahme)) a assignment and transfer by assumption of contract (Vertragsübernahme) is effected in accordance with Clause 24.5.3 below when the Agent executes an otherwise duly completed Assignment and Assumption
Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to Clause 24.5.2 below, as soon as reasonably practicable after receipt by it of a duly completed Assignment and Assumption Certificate appearing on its
face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment and Assumption Certificate. |
|
24.5.2 |
Each Party (other than the Existing Lender and the New Lender) irrevocably authorises (bevollmächtigt) the Agent to execute and thereby
ratify on its behalf any duly completed Assignment and Assumption Certificate. |
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|
24.5.3 |
The Agent shall only be obliged to execute an Assignment and Assumption Certificate delivered to it by the Existing Lender and the New Lender once
it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the assignment and transfer by assumption of contract (Vertragsübernahme)
to such New Lender. |
|
24.5.4 |
On the Transfer Date: |
|
(a) |
to the extent that in the Assignment and Assumption Certificate the Existing Lender seeks to assign and transfer by assumption of contract
(Vertragsübernahme) its rights and obligations under the Finance Documents the Borrower and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights
against one another under the Finance Documents shall be cancelled (being the Discharged Rights and Obligations); |
|
(b) |
the Borrower and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as the Borrower and the New Lender have assumed and/or acquired the same in place of the Borrower and the Existing Lender; |
|
(c) |
the Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the assignment and transfer by assumption of contract (Vertragsübernahme) and to that
extent the Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and |
|
(d) |
the New Lender shall become a Party as a Lender. |
|
24.5.5 |
For the purposes of this Clause 24.5 each Party which is incorporated or established under the laws of the Federal Republic of Germany hereby
releases the Agent from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to
such Party. A Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly. |
24.6 |
Copy of Assignment and Assumption Certificate to the Borrower |
The Agent shall, as soon as reasonably practicable after it has executed an Assignment and Assumption Certificate, send to the
Borrower a copy of that Assignment and Assumption Certificate.
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Any Lender may disclose to (i) any of its Affiliates and (ii) any other person, provided that it first obtains a
customary non-disclosure agreement (a copy of which shall be provided to the Borrower) (and in each case to any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives):
|
25.1.1 |
to (or through) whom that Lender assigns or assigns and transfers by assumption of contract (Vertragsübernahme) (or may potentially
assign or assign and transfer by assumption of contract (Vertragsübernahme)) all or any of its rights and obligations under this Agreement; |
|
25.1.2 |
with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or the Borrower; |
|
25.1.3 |
appointed by any Finance Party or by a person to whom Clause 25.1.1 or 25.1.2 above applies to receive communications, notices, information or
documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under Clause 27.13.3 (Relationship with the Lenders)); |
|
25.1.4 |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in
Clause 25.1.1 or 25.1.2 above; |
|
25.1.5 |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; |
|
25.1.6 |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or disputes; |
|
25.1.7 |
who is a Party; or |
|
25.1.8 |
with the consent of the Borrower, any information about the Borrower and the Transaction Documents as that Lender shall consider appropriate.
|
26. |
CHANGES TO THE BORROWER |
The Borrower may not assign any of its rights or assign and transfer by assumption of contract (Vertragsübernahme)
any of its rights or obligations under the Finance Documents.
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SECTION 9
THE FINANCE PARTIES
27. |
ROLE OF THE AGENT, THE ARRANGER, ANY ISSUING BANK AND OTHERS |
27.1 |
Appointment of the Agent |
|
27.1.1 |
Each of the Arranger, the Lenders and any Issuing Bank appoints the Agent to act as its agent and attorney (Stellvertreter) under and in
connection with the Finance Documents. |
|
27.1.2 |
Each of the Arranger, the Lenders and any Issuing Bank authorises the Agent to perform the duties, obligations and responsibilities and to exercise
the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
|
27.1.3 |
Each of the Arranger, the Lenders and any Issuing Bank hereby relieves the Agent from the restrictions pursuant to section 181 German Civil Code
(Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Finance Party. A Finance Party which is barred by its constitutional documents
or by-laws from granting such exemption shall notify the Agent accordingly. |
|
27.2.1 |
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other
Party. |
|
27.2.2 |
Subject to Clause 27.2.3 below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent
for that Party by any other Party. |
|
27.2.3 |
Without prejudice to Clause 24.6 (Copy of Assignment and Assumption Certificate to the Borrower), Clause 27.2.2 above shall not apply to any
Assignment and Assumption Certificate. |
|
27.2.4 |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness
of any document it forwards to another Party. |
|
27.2.5 |
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance Parties. |
|
27.2.6 |
If the Agent is aware of the non payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent,
the Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties. |
- 73 -
|
27.2.7 |
The Agents duties under the Finance Documents are solely mechanical and administrative in nature. |
|
27.2.8 |
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to
be a party (and no others shall be implied). |
27.3 |
Role of the Arranger |
Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.
|
27.4.1 |
Nothing in any Finance Document constitutes the Agent, the Arranger and/or any Issuing Bank as a trustee (Treuhänder) of any other
person. Neither the Agent nor the Arranger has any financial or commercial duty of care (Vermögensfürsorgepflicht) for any person. |
|
27.4.2 |
None of the Agent, the Arranger or any Issuing Bank shall be bound to account to any Lender for any sum or the profit element of any sum received
by it for its own account. |
27.5 |
Rights and discretions |
|
27.5.1 |
The Agent and any Issuing Bank may rely on: |
|
(a) |
any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
|
(b) |
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and |
|
(c) |
a certificate from any person: |
|
(i) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
|
(ii) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing. |
as sufficient evidence that that is the case and, in the case of paragraph (i) above, may assume the truth and accuracy of
that certificate.
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|
27.5.2 |
The Agent may assume that: |
|
(i) |
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the
Finance Documents; and |
|
(ii) |
unless it has received notice of revocation, that those instructions have not been revoked. |
|
27.5.3 |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
|
(a) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non payment)); |
|
(b) |
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and |
|
(c) |
any notice or request made by SP Holding (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of the
Borrower. |
|
27.5.4 |
The Agent may engage, pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or
experts. |
|
27.5.5 |
Without prejudice to the generality of Clause 27.5.3 above or Clause 27.5.5 below, the Agent may at any time engage and pay for the services of any
lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary. |
|
27.5.6 |
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts
(whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
|
27.5.7 |
The Agent may act in relation to the Finance Documents through its officers, employees and agents. |
|
27.5.8 |
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has
received as agent under this Agreement. |
|
27.5.9 |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Arranger or any Issuing Bank is obliged to do
or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
|
27.5.10 |
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur
any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or
security for, such risk or liability is not reasonably assured to it. |
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27.6 |
Majority Lenders instructions |
|
27.6.1 |
Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in
it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable
for any act (or omission) if it acts (or refrains from acting) in accordance with an instruction of the Majority Lenders. |
|
27.6.2 |
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance
Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion.
The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. |
|
27.6.3 |
Save in the case of decisions stipulated to be a matter for any other Lender or the Majority Lender under the relevant Finance Document and unless
a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all the Finance Parties other than the
Security Agent. |
|
27.6.4 |
The Agent may refrain from acting in accordance with any instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has
received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may
incur in complying with those instructions. |
|
27.6.5 |
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from acting) as it
considers to be in the best interest of the Lenders. |
|
27.6.6 |
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lenders consent) in any legal or arbitration
proceedings relating to any Finance Document. This Clause 27.6.6 shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of Transaction
Security or the Security Documents. |
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27.7 |
Responsibility for documentation |
None of the Agent, the Arranger or any Issuing Bank is responsible for:
|
27.7.1 |
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, any Issuing Bank, the
Borrower or any other person in or in connection with any Transaction Document or information memorandum or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document; |
|
27.7.2 |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, any Transaction Security or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; or |
|
27.7.3 |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be
regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
The Agent shall not be bound to enquire:
|
27.8.1 |
whether or not any Default has occurred; |
|
27.8.2 |
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or |
|
27.8.3 |
whether any other event specified in any Finance Document has occurred. |
27.9 |
Exclusion of liability |
|
27.9.1 |
Without limiting Clause 27.9.2 below (and without prejudice to any other provision of any Transaction Document excluding or limiting the liability
of the Agent), none of the Agent, the Arranger or any Issuing Bank will be liable for: |
|
(a) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any
action under or in connection with any Transaction Document, unless directly caused by its gross negligence or wilful misconduct; |
|
(b) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document or any
other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document, other than by reason of its gross negligence or wilful misconduct; or |
- 77 -
|
(c) |
without prejudice to the generality of paragraphs (a) and (b) above, any damages, costs or losses to any person, any diminution in value
or any liability whatsoever (but not including any claim based on the fraud of the Agent) arising as a result of: |
|
(i) |
any act, event or circumstance not reasonably within its control; or |
|
(ii) |
the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a
result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown,
failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
|
27.9.2 |
No Party (other than the Agent, the Arranger or any Issuing Bank (as applicable)) may take any proceedings against any officer, employee or agent
of the Agent, the Arranger or any Issuing Bank, in respect of any claim it might have against the Agent, the Arranger or any Issuing Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any
Transaction Document and any officer, employee or agent of the Agent, the Arranger or any Issuing Bank may rely on this Clause pursuant to section 328 para. 1 German Civil Code (Bürgerliches Gesetzbuch) (echter berechtigender Vertrag
zugunsten Dritter). |
|
27.9.3 |
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance
Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
|
27.9.4 |
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out: |
|
(a) |
any know your customer or other checks in relation to any person; or |
|
(b) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, |
on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such
checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.
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|
27.9.5 |
Without prejudice to any provision of any Finance Document excluding or limiting the Agents liability, any liability of the Agent arising
under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of
such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business
opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages. |
27.10 |
Lenders indemnity to the Agent |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share
of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within five (5) Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agents gross
negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by the Borrower pursuant to a Finance Document).
27.11 |
Resignation of the Agent |
|
27.11.1 |
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders and the Borrower. |
|
27.11.2 |
Alternatively the Agent may resign by giving thirty (30) days notice to the Lenders and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor Agent. |
|
27.11.3 |
If the Majority Lenders have not appointed a successor Agent in accordance with Clause 27.11.2 above within twenty (20) days after notice of
resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor Agent. |
|
27.11.4 |
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent
is entitled to appoint a successor Agent under Clause 27.11.3 above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent)
agree with the proposed successor Agent amendments to this Clause 27.11.4 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of
corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agents normal fee rates and those amendments will bind the Parties. |
|
27.11.5 |
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. The Borrower shall, within five Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses
(including legal fees) properly incurred by it in making available such documents and records and providing such assistance. |
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|
27.11.6 |
The Agents resignation notice shall only take effect upon the appointment of a successor. |
|
27.11.7 |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other
than its obligations under 27.11.5 above) but shall remain entitled to the benefit of Clause 16.2 (Indemnity to the Agent) and this Clause 27.11 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall
be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
|
27.11.8 |
After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with Clause 27.11.2
above. In this event, the Agent shall resign in accordance with Clause 27.11.2 above. |
|
27.11.9 |
The Agent shall resign in accordance with Clause 27.11.2 above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor Agent pursuant to Clause 27.11.3 above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either: |
|
(a) |
the Agent fails to respond to a request under Clause 14.7 (FATCA Information) and a Lender reasonably believes that the Agent will not be
(or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
|
(b) |
the information supplied by the Agent pursuant to Clause 14.7 (FATCA Information) indicates that the Agent will not be (or will have ceased
to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
|
(c) |
the Agent notifies the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
and (in each case) a Lender reasonably believes that a Party will be required to make a FATCA Deduction
that would not be required if the Agent were a FATCA Exempt Party, and that Lender, by notice to the Agent, requires it to resign.
|
27.12.1 |
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate
entity from any other of its divisions or departments. |
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|
27.12.2 |
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of it. |
|
27.12.3 |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent and the Arranger are obliged to disclose to any
other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty. |
27.13 |
Relationship with the Lenders |
|
27.13.1 |
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agents principal office as
notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: |
|
(a) |
entitled to or liable for any payment due under any Finance Document on that day; and |
|
(b) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document
made or delivered on that day, |
unless it has received not less than five (5) Business Days
prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
|
27.13.2 |
Each Lender shall supply the Security Agent with any information that the Security Agent may reasonably specify (through the Agent) as being
necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender shall deal with the Security Agent exclusively through the Agent and shall not deal directly with the Security Agent. |
|
27.13.3 |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made
or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 32.5 (Electronic communication))
electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a
notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 32.2 (Addresses) and paragraph (a)(ii) of Clause 32.5 (Electronic communication) and
the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. |
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27.14 |
Credit appraisal by the Lenders and an Issuing Bank |
Without affecting the responsibility of the Borrower for information supplied by it or on its behalf in connection with any
Transaction Document, each Lender and any Issuing Bank confirms to the Agent, the Arranger or the respective Issuing Bank that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Transaction Document including but not limited to:
|
27.14.1 |
the financial condition, status and nature of the Borrower; |
|
27.14.2 |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, any Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; |
|
27.14.3 |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in
connection with any Transaction Document or the transactions contemplated by any Transaction Document, any Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection
with any Transaction Document; and |
|
27.14.4 |
the adequacy, accuracy and/or completeness of any information memorandum, and any other information provided by the Agent any Party or by any other
person under or in connection with any Transaction Document, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with
any Transaction Document. |
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender,
the Agent shall (in consultation with the Borrower) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.
27.16 |
Agents management time |
Any amount payable to the Agent under Clause 16.2.1 (Indemnity to the Agent) (provided that it is evidenced that
a Event of Default pursuant to Clause 23.1 (Non-payment) has occured) and Clause 18.3 (Costs and expenses) and Clause 27.10 (Lenders indemnity to the Agent) shall include the cost of utilising the Agents management
time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Borrower and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause 13 (Fees).
27.17 |
Deduction from amounts payable by the Agent |
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct
an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the
Finance Documents that Party shall be regarded as having received any amount so deducted.
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27.18 |
Security Agent as creditor - parallel debt |
|
27.18.1 |
Each of the Parties agrees, and the Borrower acknowledges by way of an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) (the
Acknowledgement), that each and every obligation of the Borrower (and any of its successors pursuant to this Agreement) under this Agreement and the other Finance Documents shall also be owing in full to the Security Agent (and
each of the latters successors under this Agreement), and that accordingly the Security Agent will have its own independent right to demand performance by the Borrower of those obligations. The Security Agent undertakes towards the Borrower
that in case of any discharge of any such obligation owing to one of the Security Agent or a Finance Party, it will, to the same extent, not make a claim against the Borrower under the Acknowledgement at any time, provided that any such
claims can be made against the Borrower if such discharge is made by virtue of any set off, counterclaim or similar defence invoked by the Borrower vis-à-vis the Security Agent. |
|
27.18.2 |
Without limiting or affecting the Security Agents rights against the Borrower (whether under this Clause 27.18 or under any other provision
of the Finance Documents), the Security Agent agrees with each other Finance Party (on a several and divided basis) that, subject as set out in the next sentence, it will not exercise its rights under the Acknowledgement with a Finance Party except
with the consent of the relevant Finance Party. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Security Agents right to act in the protection or preservation of rights under or to enforce any
Security Document as contemplated by this Agreement, the relevant Security Document or any other Finance Document (or to do any act reasonably incidental to the foregoing). |
28. |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
No provision of this Agreement will:
28.1 |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
28.2 |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any
claim; or |
28.3 |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
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29. |
SHARING AMONG THE FINANCE PARTIES |
29.1 |
Payments to Finance Parties |
If a Finance Party (a Recovering Finance Party) receives or recovers any amount from the Borrower other than
in accordance with Clause 30 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:
|
29.1.1 |
the Recovering Finance Party shall, within five (5) Business Days, notify details of the receipt or recovery to the Agent;
|
|
29.1.2 |
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the
receipt or recovery been received or made by the Agent and distributed in accordance with Clause 30 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or
distribution; and |
|
29.1.3 |
the Recovering Finance Party shall, within five (5) Business Days of demand by the Agent, pay to the Agent an amount (the
Redistribution) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 30.5 (Partial
payments). |
29.2 |
Redistribution of payments |
The Agent shall treat the Redistribution as if it were a payment by the Borrower concerned under Clause 30 (Payment
mechanics) and shall pay the Redistribution to the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 30.5 (Partial payments).
29.3 |
Recovering Finance Partys rights |
After payment of the full Redistribution, the Recovering Finance Party will be subrogated to the portion of the claims paid
under Clause 29.2 (Redistribution of payments) by each Finance Party (other than the Recovering Finance Party) assigning (abtreten) to the Recovering Finance Party that part of its own corresponding claim hereunder which is
allocable to its portion of the Redistribution, and subsequently to such assignments being effected the Borrower will owe the Recovering Finance Party a debt which is equal to the Redistribution, immediately payable and of the type originally
discharged.
29.4 |
Reversal of redistribution |
If under Clause 29.2 (Redistribution of payments):
|
29.4.1 |
a Recovering Finance Party must subsequently return a Recovery, or an amount measured by reference to a Recovery, to the Borrower; and
|
|
29.4.2 |
the Recovering Finance Party has paid a Redistribution in relation to that Recovery, |
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each Finance Party shall, within three (3) Business Days of demand by the
Recovering Finance Party through the Agent, reimburse the Recovering Finance Party all or the appropriate portion of the Redistribution paid to that Finance Party. Thereupon the subrogation in Clause 29.2 (Redistribution of payments) will
operate in reverse to the extent of the reimbursement (including the reversals of the assignments contemplated therein).
|
29.5.1 |
This Clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a
valid and enforceable claim against the Borrower. |
|
29.5.2 |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if: |
|
(a) |
it notified that other Finance Party of the legal or arbitration proceedings; and |
|
(b) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or arbitration proceedings. |
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SECTION 10
ADMINISTRATION
30.1 |
Payments to the Agent |
|
30.1.1 |
On each date on which the Borrower or a Lender is required to make a payment under a Finance Document, the Borrower or that Lender shall make the
same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant
currency in the place of payment. |
|
30.1.2 |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with such bank as the Agent specifies. |
30.2 |
Distributions by the Agent |
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3
(Distributions to the Borrower) and Clause 30.4 (Clawback) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the
account of its Facility Office), to such account as that Party may notify to the Agent by not less than five (5) Business Days notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro,
in the principal financial centre of a Participating Member State or London, as specified by that Party).
30.3 |
Distributions to the Borrower |
The Agent may (with the consent of the Borrower or in accordance with Clause 31 (Set-off)) apply any amount received by
it for the Borrower in or towards payment (on the date and in the currency and funds of receipt) of any amount due from the Borrower under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
30.4 |
Clawback and pre-funding |
|
30.4.1 |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party
(or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. |
|
30.4.2 |
Unless 30.4.3 applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of funds. |
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|
30.4.3 |
If the Agent is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent
that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower: |
|
(a) |
the Borrower to whom that sum was made available shall on demand refund it to the Agent; and |
|
(b) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available,
shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. |
|
30.5.1 |
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents,
the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following order: |
|
(a) |
first, in or towards payment pro rata of any unpaid amount owing to the Agent under the Finance Documents; |
|
(b) |
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
|
(c) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and |
|
(d) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
|
30.5.2 |
The Agent shall, if so directed by the Majority Lenders, vary the order set out in Clause 30.5.1(b) above to Clause 30.5.1(d) above.
|
|
30.5.3 |
Clause 30.5.1 above and Clause 30.5.2 above will override any appropriation made by the Borrower. |
30.6 |
No set-off by Borrower |
All payments to be made by the Borrower under the Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim unless the counterclaim is undisputed or has been confirmed in a final non-appealable judgement.
|
30.7.1 |
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there
is one) or the preceding Business Day (if there is not). |
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|
30.7.2 |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid
Sum at the rate payable on the original due date. |
|
30.8.1 |
Subject to Clause 30.8.2 below and to Clause 30.8.5 below, euro is the currency of account and payment for any sum due from the Borrower under any
Finance Document. |
|
30.8.2 |
A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum shall be made in the currency in which that Utilisation or
Unpaid Sum is denominated on its due date. |
|
30.8.3 |
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that
interest accrued. |
|
30.8.4 |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
|
30.8.5 |
Any amount expressed to be payable in a currency other than euro shall be paid in that other currency. |
A Finance Party may set off any matured obligation due from the Borrower under the Finance Documents against any satisfiable
(erfüllbar) obligation (within the meaning of section 387 German Civil Code (Bürgerliches Gesetzbuch)) owed by that Finance Party to the Borrower, regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
32.1 |
Communications in writing |
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax, letter or unencrypted email.
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
|
32.2.1 |
in the case of the Borrower, that identified with its name below; |
|
32.2.2 |
in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and |
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|
32.2.3 |
in the case of the Agent, that identified with its name below, |
or any substitute address or fax number or department or officer as the Party may notify to the Agent (or the Agent may notify
to the other Parties, if a change is made by the Agent) by not less than five (5) Business Days notice.
|
32.3.1 |
Unless otherwise specifically provided, any communication or document made or delivered by one person to another under or in connection with the
Finance Documents will only be effective: |
|
(a) |
if by way of fax, when received in legible form; or |
|
(b) |
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid
in an envelope addressed to it at that address; |
and, if a particular department or officer is specified
as part of its address details provided under Clause 32.2 (Addresses), if addressed to that department or officer.
|
32.3.2 |
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it
is expressly marked for the attention of the department or officer identified with the Agents signature below (or any substitute department or officer as the Agent shall specify for this purpose). |
|
32.3.3 |
All notices from or to the Borrower shall be sent through the Agent. |
32.4 |
Notification of address and fax number |
Promptly upon receipt of notification of an address or fax number or change of address or fax number pursuant to
Clause 32.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other Parties.
32.5 |
Electronic communication |
|
32.5.1 |
Unless otherwise specifically provided, any communication to be made between any two Parties under or in connection with the Finance Documents may
be made by electronic mail or other electronic means to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties: |
|
(a) |
agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
|
(b) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of
information by that means; and |
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|
(c) |
notify each other of any change to their address or any other such information supplied by them. |
|
32.5.2 |
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any
electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose. |
|
32.6.1 |
Any notice given under or in connection with any Finance Document must be in English. |
|
32.6.2 |
All other documents provided under or in connection with any Finance Document must be: |
|
(b) |
if not in English, accompanied by a certified English translation and, in this case, the English translation will prevail in all events unless the
document is a constitutional, statutory or other official document. |
33. |
CALCULATIONS AND CERTIFICATES |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the
accounts maintained by a Finance Party are prima facie evidence (Beweis des ersten Anscheins) of the matters to which they relate.
33.2 |
Certificates and Determinations |
|
33.2.1 |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates. |
|
33.2.2 |
The Finance Parties make the certifications or determinations of a rate or amount under any Finance Document in the exercise of their unilateral
right to specify performance (einseitiges Leistungsbestimmungsrecht) which they will exercise with reasonable discretion (billiges Ermessen). |
|
33.2.3 |
The Parties agree not to dispute in any legal proceeding the correctness of the determinations and certifications of a rate or amount made by a
Finance Party under any Finance Document unless the determinations or certifications are inaccurate on their face or gross negligence or fraud can be shown. |
33.3 |
Day count convention |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of
the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.
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The Parties agree that should at any time, any provisions of this Agreement be or become void (nichtig), invalid or due
to any reason ineffective (unwirksam) this will indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or
ineffective provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties intent to uphold this Agreement even without the void, invalid or ineffective provisions.
The void, invalid or ineffective provision shall be deemed replaced by such valid and effective provision that in legal and
economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement.
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance
Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of any Finance Party shall be effective unless it is in writing.
No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights
or remedies provided by law.
36. |
AMENDMENTS AND WAIVERS |
Changes to and amendments of this Agreement including this Clause 36.1 must be made in writing.
|
36.2.1 |
Subject to Clause 36.3 (Exceptions), any term of the Finance Documents may be amended or waived only with the consent of the Majority
Lenders and the Borrower and any such amendment or waiver will be binding on all Parties. |
|
36.2.2 |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 36. |
|
36.3.1 |
An amendment or waiver that has the effect of changing or which relates to: |
|
(a) |
the definition of Majority Lenders in Clause 1.1 (Definitions); |
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|
(b) |
an extension to the date of payment of any amount under the Finance Documents; |
|
(c) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable; |
|
(d) |
an increase in or an extension of any Commitment, an extension of any Availability Period or any requirement that a cancellation of Commitments
reduces the Commitments of the Lenders rateably under the relevant Facility; |
|
(e) |
the release of any Security; |
|
(f) |
any provision which expressly requires the consent of all the Lenders; or |
|
(g) |
Clause 2.2 (Finance Parties rights and obligations), Clause 24 (Changes to the Lenders) or this Clause 36;
|
shall not be made without the prior consent of all the Lenders.
|
36.3.2 |
An amendment or waiver which relates to the rights or obligations of the Agent, the Arranger or any Issuing Bank may not be effected without the
consent of the Agent, the Arranger or the respective Issuing Bank. |
|
36.3.3 |
Notwithstanding Clause 36.3.1 above and Clause 36.3.2 above, the Agent may make technical amendments to the Finance Documents arising out of
manifest errors on the face of the Finance Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties. |
|
36.3.4 |
For the purposes of this Clause 36.3 each Party, which is incorporated or established under the laws of the Federal Republic of Germany, hereby
releases the Agent from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to
such Party. A Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly. |
37. |
CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS) |
37.1 |
The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of
telecommunication (telekommunikative Übermittlung) such as by way of fax or electronic photocopy. |
37.2 |
If the Parties to this Agreement choose to conclude this Agreement pursuant to Clause 37.1 above, they will transmit the signed signature page(s)
of this Agreement to Clifford Chance Deutschland LLP, Mainzer Landstrasse 46, 60325 Frankfurt am Main, Germany attention to Julia Krystofiak or Tobias Spahn (each a Recipient). The Agreement will be considered concluded once
(i) one Recipient has actually received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties to this Agreement (whether by way of fax, electronic photocopy or other means of telecommunication) (ii) the
respective Party has confirmed by email to the Recipients that its signature page shall be released to the other Parties and (iii) at the time of the receipt of the last outstanding signature page(s) and the respective release confirmation by
such one Recipient. |
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37.3 |
For the purposes of this Clause 37 only, the Parties to this Agreement appoint each Recipient as their attorney (Empfangsvertreter) and
expressly allow (gestatten) each Recipient to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, each Recipient will have no further duties connected with its position as
Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the
signing authority of the signatories. |
38. |
STATUTE OF LIMITATIONS (VERJÄHRUNG) |
Any claim for payment arising under this Agreement shall become time barred (verjährt) five (5) years after
its coming into existence.
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SECTION 11
GOVERNING LAW AND ENFORCEMENT
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by and construed in
accordance with the laws of the Federal Republic of Germany.
40.1 |
The courts of Munich, Federal Republic of Germany, have exclusive jurisdiction to settle any dispute arising out of, or in connection with, any
Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a Dispute).
|
40.2 |
The Parties agree that the courts of Munich, Federal Republic of Germany, are the most appropriate and convenient courts to settle Disputes and
accordingly no Party will dispute to the contrary. |
40.3 |
This Clause 40.3 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating
to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. |
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 2
CONDITIONS PRECEDENT
1.1 |
A copy of the constitutional documents of the Borrower in the form required by the Agent, including an up-to-date officially certified or
electronic commercial register extract (beglaubigter oder elektronischer Handelsregisterauszug) and the articles of association (Satzung). |
1.2 |
A copy of a resolution of the shareholders of the Borrower: |
|
1.2.1 |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party; |
|
1.2.2 |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
|
1.2.3 |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any
Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
2.1 |
Each of the following documents duly executed by all the parties thereto: |
|
2.1.3 |
each Security Document; |
|
2.1.4 |
the Security Pooling Agreement; |
|
2.1.5 |
the Shareholders Undertaking Agreement; and |
|
2.1.6 |
any other document agreed to be a Finance Document by both the Agent and the Borrower. |
Each of the Shareholder Loan Agreements duly executed by all the parties thereto certified to be a true copy by a director of
the Borrower. The maturity date of each Shareholder Loan Agreement is not earlier than the Termination Date.
Delivery of the annual audited accounts in respect of the Borrower, SP Holding and the Ultimate Parent for the period ending
31 December 2013.
- 96 -
5.1 |
The maturity date of the notes issued in connection with Note Issue is not earlier than the Termination Date. |
5.2 |
Delivery of a copy of each Refinancing Document. |
Legal opinions addressed to the Original Lenders:
6.1 |
from Sangra Moller LLP in respect of the Ultimate Parent: |
|
6.1.1 |
its due incorporation, its valid existence, its ability to assume rights and liabilities and be sued in its own name and the power to own its
assets and carry on its business as it is being conducted; |
|
6.1.2 |
the due capacity of (including the power to enter into, perform and take all necessary action to authorise its entry into and performance of, the
Shareholder Loan Agreement to which it is a party and the Shareholders Undertaking Agreement and the transactions contemplated by those Transaction Documents) and the due execution by the Ultimate Parent in relation to each of the Shareholder
Loan Agreement to which it is a party and the Shareholders Undertaking Agreement; |
|
6.1.3 |
the choice of the laws of the Federal Republic of Germany to govern the Shareholder Loan Agreement to which it is a party and the
Shareholders Undertaking Agreement being upheld by the relevant state and federal courts; and |
|
6.1.4 |
recognition and acceptance of final and conclusive judgment against it from any court in the Federal Republic of Germany by the relevant state and
federal courts without re-trial or examination of the merits of the case; |
6.2 |
from the Borrowers legal adviser in respect of the Borrower: |
|
6.2.1 |
its due incorporation, its valid existence, its ability to assume rights and liabilities and be sued in its own name and the power to own its
assets and carry on its business as it is being conducted; and |
|
6.2.2 |
the due capacity of (including the power to enter into, perform and take all necessary action to authorise its entry into and performance of the
Transaction Documents to which it is a party and the transactions contemplated by those Transaction Documents; |
6.3 |
from Clifford Chance Deutschland LLP in respect of the legality, validity and binding effect of the Finance Documents. |
7. |
Other documents and evidence |
7.1 |
A copy of any other Authorisation or other document, opinion or assurance which the Agent reasonably considers to be necessary or desirable (if it
has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. |
- 97 -
7.2 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 13 (Fees) and Clause 18 (Costs and expenses)
have been paid or will be paid by the first Utilisation Date. |
7.3 |
A solvency certificate given by the directors of the Borrower. |
7.4 |
A certificate from the Borrower, signed by two of its directors: |
|
7.4.1 |
evidencing that there has been no material adverse change in the financial condition of the Borrower since 30 June 2014;
|
|
7.4.2 |
confirming compliance with all representations and warranties to be given by the Borrower; and |
|
7.4.3 |
confirming that no Default or Event of Default has occurred and is continuing. |
7.5 |
Provision by the Borrower of all information necessary to comply with any money laundering regulations. |
- 98 -
SCHEDULE 3
UTILISATION REQUEST
Dear Sirs
Zellstoff Stendal GmbH EUR 75,000,000 Revolving Credit Facility Agreement dated
[] (the Agreement)
1. |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request. |
2. |
We wish to [borrow a Loan]/[request the issue of a Bank Guarantee] on the following terms: |
|
|
|
Proposed Utilisation Date: |
|
[] (or, if that is not a Business Day, the next Business Day) |
|
|
Amount: |
|
[] or, if less, the Available Facility |
|
|
Interest Period: |
|
[] |
3. |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4. |
The proceeds of this Loan should be credited to [account]. |
5. |
This Utilisation Request is irrevocable. |
Yours faithfully
|
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|
|
authorised signatory for |
|
|
|
authorised signatory for |
[name of Borrower] |
|
|
|
[name of Borrower] |
- 99 -
SCHEDULE 4
FORM OF ASSIGNMENT AND ASSUMPTION CERTIFICATE
To: |
UniCredit Bank AG as Agent |
From: |
[The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)
|
Zellstoff
Stendal GmbH EUR 75,000,000 Revolving Credit Facility Agreement dated [] (the Agreement)
1. |
We refer to the Agreement. This is an Assignment and Assumption Certificate. Terms defined in the Agreement have the same meaning in this
Assignment and Assumption Certificate unless given a different meaning in this Assignment and Assumption Certificate. |
2. |
We refer to Clause 24.5 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)): |
|
(a) |
the Existing Lender assigns to the New Lender all the rights of the Existing Lender under the Finance Documents (including the Security Pooling
Agreement and the Shareholders Undertaking Agreement) which correspond to that portion of the Existing Lenders Commitments under the Agreement specified in the Schedule; |
|
(b) |
the New Lender assumes all the obligations of the Existing Lender which correspond to the rights assigned under paragraph (a) above;
|
|
(c) |
the Existing Lender is released from those obligations; and |
|
(d) |
on the Transfer Date, the New Lender shall become a Party as a Lender. |
3. |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 32.2 (Addresses)
are set out in the Schedule. |
4. |
The proposed Transfer Date is []. |
5. |
The New Lender expressly acknowledges the limitations on the Existing Lenders obligations set out in Clause 24.4.3 (Limitation of
responsibility of Existing Lenders). |
6. |
The New Lender confirms (i) that it becomes a party to the Security Pooling Agreement and the Shareholders Undertaking Agreement by virtue of
the assignment and assumption hereunder and (ii) that it is bound by, and entitled to all benefits arising from, the provisions of such agreements as if it had been an original party to such agreements. |
- 100 -
7. |
This Assignment and Assumption Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Assignment and Assumption Certificate. |
8. |
This Assignment and Assumption Certificate is governed by German law. |
- 101 -
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and account details for payments,]
|
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|
[Existing Lender] |
|
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[New Lender] |
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By: |
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|
By: |
|
|
This Assignment and Assumption Certificate is accepted by the Agent and the Transfer Date is confirmed as [].
[Agent]
- 102 -
SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: |
UniCredit Bank AG as Agent |
Dated:
Dear Sirs
Zellstoff Stendal GmbH EUR
75,000,000 Revolving Credit Facility Agreement dated [] (the Agreement)
1. |
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance Certificate. |
2. |
We confirm that each financial covenant referred to in Clause 21 (Financial covenants) is as set out in the table below:
|
|
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|
|
Financial covenant |
|
Actual ratio |
|
Leverage ratio |
|
|
[] |
|
Interest Cover Ratio |
|
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[] |
|
Current Ratio |
|
|
[] |
|
3. |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Compliance
Certificate. |
4. |
[We confirm that no Default is continuing.]* |
|
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Signed: |
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Director of [Borrower] |
|
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Director of [Borrower] |
in its capacity as Borrower
* |
If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.
|
- 103 -
SCHEDULE 8
TIMETABLES
|
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First Utilisation in EUR |
|
Any subsequent Utilisations in EUR |
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request for Loans) |
|
U 2 12 a.m. |
|
U 5 9.30 a.m. |
|
|
|
Delivery of a duly completed Utilisation Request (Clause 6.2 (Delivery of a Utilisation Request for Bank Guarantees) |
|
N.A. |
|
U 5 9.30 a.m. |
|
|
|
Agent determines (in relation to a Utilisation) the amount of the Loan, if required under Clause 5.5 (Lenders
participation) and notifies the Lenders of the Loan in accordance with Clause 5.5 (Lenders participation) |
|
U -2 [] |
|
U 3 Noon |
|
|
|
Agent notifies any Issuing Bank and each Lender of the details of the requested Bank Guarantee and its participation in that Bank
Guarantee in accordance with Clause 6.5.3 (Issue of Bank Guarantees) |
|
N.A. |
|
U 3 Noon |
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|
|
Delivery of a duly completed Renewal Request (Clause 6.6.1 (Renewal of a Bank Guarantee) |
|
N.A. |
|
U 3 9.30 a.m. |
|
|
|
EURIBOR is fixed |
|
Q as of [] |
|
Q as of 11:00 a.m. |
U = date of Utilisation
Q = Quotation Date
U - X = X Business
Days prior to the Utilisation Date
- 106 -
SCHEDULE 10
FORM OF INTEREST PAYMENT NOTICE
|
|
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To: |
|
UniCredit Bank AG as Agent |
|
|
From: |
|
[The Borrower] |
|
|
Dated: |
|
|
Dear Sirs
Zellstoff Stendal
GmbH EUR 75,000,000 Revolving Credit Facility Agreement dated [] (the Agreement)
1. We refer to the Agreement. This is a Payment Notice. Terms defined in the Agreement have the same meaning when used in this Payment Notice
unless given a different meaning in this Payment Notice.
2. We hereby inform you that we intend to make a transfer of funds to the
Shareholder Distribution Account in the amount of EUR [].
3. The amount of
interest due under Shareholder Loan Agreements for the current fiscal year ending [] is EUR [].
4. We have made the following previous transfers to the Shareholder Distribution Account during the current fiscal year []. Together with the transfer to be made, the total amount transferred to the Shareholder Distribution Account during this fiscal year will be [].
5. We hereby confirm that each financial covenant referred to in Clause 21 (Financial covenants) is as set out in the table below
as of the latest Calculation Date:
|
|
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|
|
Financial covenant |
|
Actual ratio |
|
Leverage ratio |
|
|
[] |
|
Interest Cover Ratio |
|
|
[] |
|
Current Ratio |
|
|
[] |
|
6. We confirm that the Minimum Liquidity is currently EUR
[].
7. We confirm that no Event of Default has occurred and is continuing.*
|
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Signed: |
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Director of [Borrower] |
|
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Director of [Borrower] |
in its capacity as Borrower
- 108 -
SIGNATURES
|
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THE BORROWER ZELLSTOFF STENDAL GMBH |
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By: |
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/s/ André Listemann |
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/s/ Adolf Koppensteiner |
|
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André Listemann |
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Adolf Koppensteiner |
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Address: |
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Goldbecker Strasse 1 39596 Arneburg |
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Fax: |
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+49-(0)39321-55129 |
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Attention: |
|
André Listemann / Adolf Koppensteiner |
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Email: |
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andre.listemann@zellstoff-stendal.de adolf.koppensteiner@zellstoff-stendal.de |
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THE ARRANGER |
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UNICREDIT BANK AG |
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By: |
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/s/ Marc Thümecke |
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/s/ Hansjörg Gonser |
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Marc Thümecke |
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Hansjörg Gonser |
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Address: |
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UniCredit Bank AG |
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Arabellastrasse 14 |
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81925 Munich |
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Federal Republic of Germany |
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Fax: |
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+49 89 378 33 200 46 |
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Department: |
|
MFN1AB |
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Attention: |
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Ms. Ricarda Grünter /Mr. Felix Metz |
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Email: |
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ricarda.gruenter@unicredit.de / felix.metz@unicredit.de |
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- 110 -
|
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|
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THE AGENT
UNICREDIT BANK AG |
|
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By: |
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/s/ Philipp Sager |
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/s/ Manuela Schöttner |
|
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Philipp Sager |
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Manuela Schöttner |
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Address: |
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UniCredit Bank AG Arabellastrasse 14
81925 Munich Federal Republic of Germany |
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Fax: |
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+49 89 378 41517 |
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Department: |
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MFL 3LA |
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Attention: |
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Mrs. Manuela Schöttner / Mr. Philipp Sager |
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Email: |
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manuela.schoettner@unicredit.de / philipp.sager@unicredit.de |
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THE SECURITY AGENT |
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UNICREDIT BANK AG |
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By: |
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/s/ Philipp Sager |
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/s/ Manuela Schöttner |
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|
Philipp Sager |
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|
Manuela Schöttner |
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Address: |
|
UniCredit Bank AG |
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Arabellastrasse 14 |
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81925 Munich |
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Federal Republic of Germany |
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Fax: |
|
+49 89 378 41517 |
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Department: |
|
MFL 3LA |
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Attention: |
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Mrs. Manuela Schöttner / Mr. Philipp Sager |
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Email: |
|
manuela.schoettner@unicredit.de / philipp.sager@unicredit.de |
|
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- 111 -
|
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|
|
THE LENDERS UNICREDIT BANK AG
|
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By: |
|
/s/ Marc Thümecke |
|
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|
/s/ Hansjörg Gonser |
|
|
Marc Thümecke |
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|
Hansjörg Gonser |
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Address: |
|
UniCredit Bank AG |
|
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|
Arabellastrasse 14 |
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81925 Munich |
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|
Federal Republic of Germany |
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Fax: |
|
+49 89 378 33 200 46 |
|
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Department: |
|
MFN1AB |
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Attention: |
|
Ms. Ricarda Grünter / Mr. Felix Metz |
|
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Email: |
|
ricarda.gruenter@unicredit.de / felix.metz@unicredit.de |
|
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|
|
CREDIT SUISSE AG, LONDON BRANCH |
|
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|
By: |
|
/s/ Garett Lynskey |
|
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|
/s/ Brian Fitzgerald |
|
|
Garett Lynskey |
|
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|
Brian Fitzgerald |
|
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|
Address: |
|
One Cabot Square
London E14 4QJ United
Kingdom |
|
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|
Attention:: |
|
Operational matters Ms. Claire Perkins |
|
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Email: |
|
list.csfbi-loans-grp@credit-suisse.com |
|
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|
|
|
|
Attention: |
|
Credit matters Mr. Clemens Kramer / Ms. Manuela Sommer |
|
|
Email: |
|
clemens.kramer@credit-suisse.com / manuela.u.sommer@credit-suisse.com |
- 112 -
ROYAL BANK OF CANADA
|
|
|
|
|
By: |
|
/s/ Eduardo Pinto |
|
|
|
|
Eduardo Pinto |
|
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|
|
Address: |
|
Riverbank House 2 Swan Lane
London, EC4R 3BF United Kingdom |
|
|
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|
Fax: |
|
+44 20 7653 4000 |
|
|
|
|
|
Department: |
|
Global Corporate Banking |
|
|
|
|
|
Attention: |
|
Antonios Themistokleous |
|
|
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|
|
Email: |
|
antonios.themistokleous@rbccm.com |
|
|
|
|
BARCLAYS |
|
|
|
|
|
By: |
|
/s/ Christina Park |
|
|
|
|
Christina Park |
|
|
|
|
|
Address: |
|
Barclays Bank PLC 5 The North Colonnade
Canary Wharf London E14 4BB
United Kingdom |
|
|
|
|
|
Fax: |
|
+44 20 7773 1843 |
|
|
|
|
|
Attention: |
|
Gary Brine / Odilon Du Bouetiez |
|
|
|
|
Email: |
|
gary.brine@barclays.com / odilon.dubouetiez@barclays.com |
- 113 -
Exhibit 99.1
For Immediate Release
MERCER INTERNATIONAL INC. ANNOUNCES EARLY TENDER RESULTS AND RECEIPT
OF CONSENTS FROM A MAJORITY OF HOLDERS OF ITS
9.500% SENIOR NOTES DUE 2017
NEW YORK, NY, November 26, 2014 Mercer International Inc. (Nasdaq: MERC, TSX: MRI.U) (the Company)
today announced that, as part of its previously announced cash tender offer and consent solicitation (the Tender Offer and Consent Solicitation) for any and all of its outstanding 9.500% Senior Notes due 2017 (the Notes), it
has received tenders and consents for approximately $299,437,000 aggregate principal amount of the Notes, representing approximately 89.6% in principal amount of the outstanding Notes, which were validly tendered by 5:00 p.m., New York City time, on
November 25, 2014 (the Consent Time). The Company expects, subject to the satisfaction of the conditions set forth in the Offer to Purchase and Consent Solicitation dated November 12, 2014 (the Offer to Purchase)
pursuant to which the Tender Offer and Consent Solicitation was made, to accept for purchase and settle all Notes validly tendered prior to the Consent Time on or about November 26, 2014.
The consents are sufficient to give effect to all of the proposed amendments (the Proposed Amendments) to the
indenture governing the Notes (the Indenture) as set forth in the Offer to Purchase and the related Letter of Transmittal, pursuant to which the Tender Offer and Consent Solicitation are being made. The Proposed Amendments eliminate
substantially all of the restrictive covenants, certain events of default and related provisions in the Indenture. The Company has executed a supplemental indenture (the Supplemental Indenture) containing the Proposed Amendments to the
Indenture. The Supplemental Indenture is binding on all holders of Notes, even those whose Notes are not purchased in the Tender Offer and Consent Solicitation. The Supplemental Indenture provides that the Proposed Amendments will become operative
upon payment of the consent fee described in the Offer to Purchase to each holder delivering (and not revoking) a valid consent on or prior to the Consent Time.
Holders who have not yet tendered their Notes may tender until 11:59 p.m., New York City time, on December 10, 2014,
unless the Tender Offer and Consent Solicitation is extended or earlier terminated by the Company. The withdrawal deadline for the Tender Offer and Consent Solicitation has passed and any Notes tendered may only be withdrawn to the extent required
by applicable law. The completion of the Tender Offer and Consent Solicitation is subject to the satisfaction or waiver by the Company of a number of conditions, as described in the Offer to Purchase, including the consummation by the Company of a
new debt financing.
The Company has retained Credit Suisse Securities (USA) LLC to serve as the
dealer manager and solicitation agent for the Tender Offer and Consent Solicitation. Questions regarding the Tender Offer and Consent Solicitation may be directed to Credit Suisse Securities (USA) LLC, Attn: Liability Management Group, at
(212) 538-2147 or (800) 820-1653 (toll free). Requests for documents may be directed to D.F. King & Co., Inc., the information agent and tender agent for the Tender Offer and Consent Solicitation, at (877) 361-7968 (toll
free) or (212) 269-5550. The Tender Offer and Consent Solicitation are being made only through the Offer to Purchase and the related Letter of Transmittal. Holders of Notes are urged to read the Offer to Purchase carefully before making any
decisions with respect to the Tender Offer and Consent Solicitation because it contains important information, including the terms and conditions of the Tender Offer and Consent Solicitation. None of the Company, the dealer manager and solicitation
agent or the information agent and tender agent makes any recommendation as to whether or not Notes should be tendered pursuant to the Tender Offer and Consent Solicitation, and no one has been authorized by any of them to make such a
recommendation.
Mercer International Inc. is a global pulp manufacturing company. To obtain further information on the
Company, please visit its web site at http://www.mercerint.com. Information found on the Companys website is not incorporated herein by reference.
The preceding includes forward looking statements which involve known and unknown risks and uncertainties which may cause
our actual results in future periods to differ materially from forecasted results. In particular, statements about our plans or intentions regarding the completion of the Tender Offer and Consent Solicitation are forward-looking statements and may
not necessarily occur. Among those factors which could cause actual results to differ materially are the following: the highly cyclical nature of our business, raw material costs, our level of indebtedness, competition, foreign exchange and interest
rate fluctuations, our use of derivatives, expenditures for capital projects, environmental regulation and compliance, disruptions to our production, market conditions and other risk factors listed from time to time in our reports filed with the
Securities and Exchange Commission.
APPROVED BY:
Jimmy S.H. Lee
Chairman &
President
(604) 684-1099
David M. Gandossi, CPA, CA
Executive Vice-President &
Chief Financial Officer
(604)
684-1099
Exhibit 99.2
For Immediate Release
MERCER INTERNATIONAL INC. COMPLETES PRIVATE OFFERING OF
$650 MILLION OF SENIOR NOTES
NEW YORK, NY, November 26, 2014 Mercer International Inc. (Nasdaq: MERC, TSX: MRI.U) (the Company)
today announced that it has completed its previously announced private offering of $250 million in aggregate principal amount of 7.000% senior notes due 2019 and $400 million in aggregate principal amount of 7.750% senior notes due 2022
(collectively, the Notes). The Notes of each series were issued at a price of 100% of their principal amount. The net proceeds from this offering, together with cash on hand and borrowings under the Companys revolving credit
facilities, will be used to refinance certain of the Companys existing indebtedness, including the Companys currently outstanding 9.500% Senior Notes due 2017 and two loan facilities related to its Stendal mill.
The Notes were sold to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as
amended (the Securities Act), and outside the United States to non-U.S. persons in reliance on Regulation S under the Securities Act. The Notes have not been registered under the Securities Act or any state securities laws and, unless so
registered, may not be offered or sold in the United States except pursuant to an exemption form, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. This press release shall
not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the Notes in any state in which such offer, solicitation or sale would be unlawful.
Mercer International Inc. is a global pulp manufacturing company.
The preceding includes forward looking statements which involve known and unknown risks and uncertainties which may cause
our actual results in future periods to differ materially from forecasted results. In particular, statements about our plans or intentions regarding the intended use of proceeds of the Notes are forward-looking statements and may not necessarily
occur. Among those factors which could cause actual results to differ materially are the following: the highly cyclical nature of our business, raw material costs, our level of indebtedness, competition, foreign exchange and interest rate
fluctuations, our use of derivatives, expenditures for capital projects, environmental regulation and compliance, disruptions to our production, market conditions and other risk factors listed from time to time in our SEC reports.
APPROVED BY:
Jimmy S.H. Lee
Chairman & President
(604) 684-1099
David M.
Gandossi
Executive Vice-President &
Chief Financial Officer
(604)
684-1099
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