Exhibit 10.1
NOTE PURCHASE
AGREEMENT
Dated as of March 21,
2007
Between
CELLU TISSUE HOLDINGS, INC.
Issuer of the Notes
and
WINGATE CAPITAL LTD.
Purchaser
$20,255,572 AGGREGATE PRINCIPAL
AMOUNT
OF 9 3/4% SENIOR SECURED NOTES
DUE 2010
NOTE PURCHASE
AGREEMENT
This NOTE PURCHASE AGREEMENT is
dated as of March 21, 2007 by and between Cellu Tissue Holdings,
Inc. (the “Company”) and Wingate Capital Ltd. (the
“Purchaser”).
RECITALS
WHEREAS, the Company and certain of
its Subsidiaries have entered into an Indenture dated as of March
12, 2004 with The Bank of New York as Trustee (as supplemented and
in effect on the date hereof, the “Indenture”),
relating to its 9 3/4% Senior Secured Notes due 2010 (the
“Senior Secured Notes”) pursuant to which the Company
is authorized to issue additional Senior Secured Notes subject to
the terms and conditions specified in the Indenture.
WHEREAS, the Company desires to
issue pursuant to the Indenture and sell to the Purchaser, and the
Purchaser has agreed to purchase, subject to the terms and
conditions herein, $20,255,572 aggregate principal amount of Senior
Secured Notes (the “ Notes ”).
WHEREAS, the Company will use the
proceeds of the issuance and sale of the Notes to provide a portion
of the financing for the acquisition by the Company of the stock of
CityForest Corporation (the “Acquisition”).
AGREEMENT
In consideration of the foregoing,
and the representations, warranties, covenants and conditions set
forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1.
Certain Defined Terms . Capitalized terms used and not
otherwise defined in this Agreement are defined in Appendix
I.
ARTICLE 2
PURCHASE AND SALE OF THE NOTES
2.1.
Purchase and Sale of Notes . Subject to the terms and
conditions of this Agreement and on the basis of the
representations and warranties set forth herein, the Company hereby
agrees to issue and to sell to the Purchaser, and by its acceptance
hereof the Purchaser agrees to purchase from the Company at the
Closing, $20,255,572 aggregate principal amount of the Notes for
the purchase price of $20,000,007, which is equal to 98.7383% of
the aggregate principal amount of the Notes.
2.2.
Closing . The purchase and sale of the Notes pursuant
to Section 2.1 shall occur at a closing (the “ Closing
”) to be held on March 21, 2007 at 10:00 a.m. (Boston time),
at the offices of Ropes & Gray LLP, One International Place,
Boston, MA 02110, or at such other date, time and/or location as
may be agreed upon by the parties hereto.
2.3.
Delivery of Notes . Notes will be in substantially the
form of Exhibit A. The Company will deliver the Notes to the
Purchaser, against payment by or on behalf of the Purchaser of the
purchase price therefor by wire transfer of Federal (same day)
funds to JPMorgan/Chase Bank, New York, New York, ABA #021000021,
Account Name: Cellu Tissue Corp., Account #114-733805.
2.4.
Use of Proceeds . The proceeds of the sale by the
Company of the Notes hereunder shall be used to provide a portion
of the financing for the Acquisition.
ARTICLE 3
TERMS OF THE NOTES
3.1.
Notes Under Indenture . The Notes shall be issued
under the Indenture and shall be subject to all the terms and
conditions thereof and entitled to all the benefits
thereof.
3.2.
CUSIP . The Purchaser understands that because the
Notes are issued at a discount the Notes will have a CUSIP number
through the maturity of the Notes which is different from the CUSIP
number of the Senior Secured Notes previously issued under the
Indenture. The Purchaser further understands that the Notes
will not either now or in the future be entitled to share the same
CUSIP number as the notes previously issued under the
Indenture.
3.3.
No Registration Rights . The Purchaser understands and
agrees that the Company is and will be under no obligation to
effect any registration of the Notes under the Securities
Act.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and
warrants to and for the benefit of the Company that:
4.1.
Legal Capacity; Due Authorization . The Purchaser has
full legal capacity, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and
delivered by the Purchaser and is the legal, valid and binding
obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms subject to bankruptcy and general
principles of equity.
4.2.
Restrictions on Transfer . The Purchaser has been
advised that the Notes have not been registered under the
Securities Act or any state securities laws and cannot be resold
unless registered under the Securities Act and applicable state
securities laws or unless an exemption from such registration
requirements is available, and that accordingly the Notes may have
to be held by the Purchaser for an indefinite period of time.
The Purchaser is purchasing the Notes for its own account and not
with a view to, or for resale in connection with, the distribution
thereof; provided , however , that subject to
compliance with the restrictions contained or referred to in the
Indenture, the Notes and this Agreement, the disposition of such
Purchaser’s property shall at all times be and remain under
its sole discretion and control. The Purchaser acknowledges
and agrees that each Note will bear a legend (or a substantially
similar indication) indicating that the Notes have not been
registered under the Securities Act or under any state securities
laws and may not be sold, offered for sale or otherwise transferred
in the absence of an effective registration statement under the
Securities Act and applicable state securities laws or an exemption
from registration thereunder, in addition to any other legends
required by applicable state blue sky laws.
4.3.
Accredited Investor, etc . The Purchaser has such
knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investment in
the Notes, is able to incur a complete loss of such investment and
to bear the economic risk of such investment for an indefinite
period of time. Such Purchaser has been given access to all
information with respect to the Company requested by the Purchaser
and has had access to, and adequate opportunity to ask questions of
and request additional information from, officers and
representatives of the Company concerning the Company’s
business, operations and financial condition. Such Purchaser
(i) is an “accredited investor” as
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that term is
defined in Regulation D under the Securities Act and (ii) has been
represented by counsel in the purchase of the Notes and has been
advised with respect to the restrictions imposed by state and
federal securities laws with respect to the disposition of the
Notes.
4.4.
Independent Decision . The Purchaser has independently
and without reliance on the Company, and based on such information
as the Purchaser has deemed appropriate, made its own analysis and
decision to enter into this Agreement and the transaction
contemplated hereby, except that the Purchaser has relied upon the
Company’s express representations, warranties and covenants
made herein. The Purchaser acknowledges that the Company has
not given the Purchaser any investment advice, credit information
or opinion on whether the purchase of the Notes is a prudent
investment decision.
4.5.
Brokerage Fees, etc . The Purchaser represents and
warrants to the Company that no broker’s, finder’s or
placement fee or commission will be payable to any Person alleged
to have been retained by the Purchaser with respect to any of the
transactions contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchaser to
enter into this Agreement and to purchase the Notes hereunder, the
Company represents and warrants for the benefit of the Purchaser
that, as of the Closing Date (unless otherwise stated, both before
and after giving effect to the issuance of the Notes):
5.1.
Organization, Good Standing and Qualification . The
Company is a corporation, duly organized and validly existing under
the laws of the State of Delaware and has all requisite power and
authority to conduct its business as now conducted. The
Company is duly qualified as a foreign entity and in good standing
in all states or other jurisdictions where the nature and extent of
the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which
the failure to so qualify would not reasonably be expected to
result in a Material Adverse Effect. Certified copies of the
Governing Documents of the Company have been delivered to the
Purchaser and such copies of the Governing Documents are correct
and complete.
5.2.
Authorization . The Company has taken all necessary
corporate action to authorize the execution and delivery of
this Agreement and the Notes and the performance of its obligations
hereunder and thereunder. This Agreement constitutes the
valid and legally binding obligation of the Company enforceable in
accordance with its terms subject to bankruptcy laws and general
principles of equity.
5.3.
Valid Issuance of the Notes . The Notes, when issued,
sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly authorized
and issued, fully paid, free of restrictions on transfer, other
than restrictions contained or referred to in the Indenture, the
Notes or this Agreement and enforceable in accordance with their
terms subject to bankruptcy laws and general principles of
equity. Based in part upon the representations of the
Purchaser in Article 4 of this Agreement, the Notes will be issued
in compliance with all applicable United States securities
laws.
5.4.
Financial Statements and Other Information .
5.4.1.
The Company has previously furnished to the Purchaser copies of the
following: (i) the Company’s filing on Form 10-K for
the fiscal year ended February 28, 2006; (ii) the Company’s
filings on Form 10-Q for the fiscal quarters ended May 25, 2006,
August 24, 2006 and November 23, 2006; and (iii) the
Company’s filings on Form 8-K dated January 5,
2006,
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March 30, 2006,
May 9, 2006, June 5, 2006, June 16, 2006, July 7, 2006, October 4,
2006, October 5, 2006 and January 5, 2007 (the “Company SEC
Documents”).
5.4.2.
As of the time it was filed with the SEC (or, if amended or
superseded by a filing prior to the date of this Agreement, then on
the date of such filing): (i) each of the Company SEC
Documents complied in all material respects with such requirements
of the Securities Act or the Exchange Act as were applicable
thereto; and (ii) none of the Company SEC Documents contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
5.4.3.
The financial statements (including any related notes) contained in
the Company SEC Documents fairly present, in all material respects,
the consolidated financial position of the Company and its
Subsidiaries as of the respective dates thereof and the
consolidated results of operations of the Company and its
Subsidiaries for the periods covered thereby in accordance with
GAAP applied on a consistent basis throughout the periods covered
(except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by
Form 10-Q of the SEC, and except that unaudited financial
statements may not contain footnotes and are subject to year-end
adjustments).
5.4.4.
As of the date of this Agreement, neither the Company nor any of
its Subsidiaries has any liabilities of the type required to be
disclosed in the liabilities column of a balance sheet prepared in
accordance with GAAP, except for: (i) liabilities disclosed
in the financial statements (including any related notes) contained
in the Company SEC Documents; (ii) liabilities incurred in the
ordinary course of business since the date included in the
financial statements of the Company SEC Documents; and (iii)
liabilities that are not material in the aggregate to the Company
and its Subsidiaries on a consolidated basis.
5.4.5.
The information with respect to the Company and its Subsidiaries
contained in the Private Placement Memorandum dated January, 2007
relating to $20,000,000 Senior Unsecured Subordinated Notes (the
“Subordinated Notes”) of the Company due 2012 (the
“Placement Memorandum”) when taken as a whole with the
Company SEC Documents did not as of the date thereof contain an
untrue statement of material fact or omit to state a material fact
necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which
such statements were made. The information contained in the
Placement Memorandum with respect to CityForest Corporation was
prepared in good faith by the Company based on information obtained
from CityForest Corporation. Notwithstanding the foregoing,
no representation regarding projections or forward looking
statements is being made in this Section 5.4.5 and the disclaimers
and cautionary statements with respect thereto set forth in the
Placement Memorandum are incorporated herein by reference.
The Company and the Purchaser agree that the Notes are being
purchased in lieu of the Subordinated Notes and that no
representation is being made with respect to any portion of the
Placement Memorandum to the extent that the information in the
Placement Memorandum is affected by the issuance of the Notes in
lieu of the Subordinated Notes.
5.5.
Material Adverse Effect . Since September 30, 2006 no
event or condition has occurred which affects the Company or its
Subsidiaries which has had or could be reasonably expected to have
a Material Adverse Effect.
5.6.
Consents . No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local
governmental authority, or any third
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party in
connection with any agreement to which the Company or any of its
Subsidiaries is party, is required to be obtained or made by the
Company or any of its Subsidiaries in connection with the
issuance of the Notes other than such of the foregoing as have been
or will be obtained prior to the Closing or where the failure to
obtain the consent of a third party would not affect the ability of
the Company to enter into the Agreement, to issue the Notes and
perform its obligations under the Notes, and would not result in a
Material Adverse Effect.
5.7.
Litigation . Except as disclosed with the Company SEC
Documents, there is no action, suit, proceeding or investigation
pending or, to the Company’s knowledge, currently threatened
that questions the validity of this Agreement or the right of the
Company or any of its Subsidiaries to enter into this Agreement and
to issue the Notes or that would reasonably be expected to result,
either individually or in the aggregate, in a Material Adverse
Effect.
5.8.
Compliance with Other Instruments . The
execution, delivery and performance of this Agreement and the
issuance of the Notes will not result in the violation of any
instrument, judgment, order, writ, decree or contract to which the
Company is a party or by which it is bound or, of any provision of
federal or state statute, rule or regulation applicable to it or be
in conflict with or constitute, with or without the passage of time
and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event
which results in the creation of any Lien, charge or encumbrance
upon any assets of the Company or any of its Subsidiaries,
except for a violation, conflict or default that does not affect
the ability of the Company to enter into this Agreement, to issue
the Notes and perform its obligation under the Notes and would not
result in a Material Adverse Effect.
5.9.
Delivery of Acquisition Documents . The Company
has delivered to the Purchaser true, accurate and complete copies
of each of the Acquisition Documents which are the only agreements
of the Company relating to the Acquisition.
5.10.
No Governmental Approval Necessary . Assuming the
truth and accuracy of the Purchaser’s representations set
forth in Article 4 of this Agreement, no consent by, approval of,
giving of notice to, registration with, or taking of any other
action with respect to or by any federal, state, or local
governmental authority or organization is required for any of the
Company’s execution, delivery, or performance of this
Agreement or the issuance of the Notes.
5.11.
Private Placement . Assuming the truth and accuracy of
the Purchaser’s representations set forth in Article 4 of
this Agreement, the offer, sale and issuance of the Notes as
contemplated by this Agreement is exempt from the registration
requirements of the Securities Act. Neither the Company nor
any authorized agent acting on behalf of it will take any action
hereafter that would cause the loss of such exemption.
ARTICLE 6
CLOSING CONDITIONS
6.1
Purchaser’s Conditions . The obligation of the
Purchaser to purchase and pay for the Notes provided for hereunder
on the Closing Date is subject to the satisfaction of the following
conditions, each as of the Closing Date:
6.1.1
Representations and Warranties; No Default . After
giving effect to the issuance of the Notes and Acquisition all
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects, and
there shall exist no continuing Default or Event of Default under
the Indenture.
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6.1.2
Delivery of Documents . The Purchaser shall have
received the following items, each of which shall be in form and
substance reasonably satisfactory to the Purchaser and, unless
otherwise noted, dated as of the Closing Date:
6.1.2.1
Resolutions of the board of directors of the Company authorizing
the execution, delivery and performance of this Agreement and
authorizing the issuance and sale of the Notes certified as of the
Closing Date by its secretary or an assistant secretary as being in
full force and effect.
6.1.2.2
A copy of a certificate of the Secretary of State of the State of
Delaware, dated as of a recent date prior to the Closing Date and
listing all Governing Documents of the Company on file with such
Secretary, including any amendments thereto, and copies of all such
Governing Documents and certifying that the Company is duly
organized and in good standing under the laws of the State of
Delaware.
6.1.2.3.
A certificate of the Company, signed on its behalf by a duly
authorized officer and dated the Closing Date, certifying as to
(i) the absence of any amendment to the Governing Documents of
the Company since the date of the applicable secretary of
state’s certificate referred to in Section 6.1.2.2, (ii)
its bylaws as in effect on the Closing Date and (iii) the
completeness and accuracy of the representations and warranties
contained in this Agreement as of the Closing Date, including the
absence of any event occurring and continuing, or resulting from
the transactions contemplated under this Agreement, that
constitutes a Default or an Event of Default under the
Indenture.
6.1.2.4.
A certificate of the secretary or an assistant secretary of the
Company certifying the names and true signatures of the
officers of the Company executing this Agreement.
6.1.2.5.
A legal opinion of Ropes & Gray, LLP, counsel for the Company,
addressed to the Purchaser in substantially the form attached as
Exhibit B.
6.1.2.6.
A certificate signed by a duly authorized officer of the Company
certifying that the conditions specified in this Section 6 have
been fulfilled.
6.1.3.
Acquisition Closed . The Acquisition shall be
consummated substantially simultaneously with the
Closing.
6.1.4.
Issues of Notes . The Company shall have issued and
delivered the Notes to the Purchaser against payment therefor as
contemplated by Section 2.3.
6.2.
Company Conditions . The obligation of the Company to
issue the Notes on the Closing Date as provided herein is subject
to the satisfaction of the following conditions, each as of the
Closing Date:
6.2.1.
Purchase Price . The Purchaser shall have paid for the
Notes as provided in Section 2.3.
6.2.2.
Representations and Warranties. The representations
and warranties of the Purchaser set forth in Article 4 shall be
true and correct.
6.2.3.
Acquisition Closed . The Acquisition shall be
consummated substantially simultaneously with the
Closing.
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ARTICLE 7
RESTRICTIONS ON TRANSFER; LEGENDS
7.1.
Assignments . After the Closing and subject to the
restrictions referred to in Section 7.2, the Purchaser may sell,
assign, transfer or negotiate all or any part of their
Notes.
7.2.
Restrictive Notes Legend . Each Note shall bear
legends in substantially the forms contained in Exhibit A and shall
be subject to the restrictions on transfer contained in the
Indenture for as long as such restrictions shall be
applicable.
7.3.
Other Note Legends . Each Note shall bear a legend in
substantially the following form:
“THIS NOTE BEARS ORIGINAL
ISSUE DISCOUNT. UPON WRITTEN REQUEST TO CELLU TISSUE
HOLDINGS, INC. 1855 LOCKEWAY DRIVE, STE. 501, ALPHARETTA, GEORGIA
30004, ATTENTION: CHIEF EXECUTIVE OFFICER, INFORMATION REGARDING
THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND
YIELD TO MATURITY WILL BE MADE AVAILABLE.”
ARTICLE 8
MISCELLANEOUS
8.1.
Amendments and Waivers . No amendment, modification,
termination or waiver of any provision of this Agreement, shall in
any event be effective without the written consent of the
Purchaser and the Company.
8.2.
Expenses . Each of the Company and the Purchaser shall
bear its own expenses incurred in connection with the execution and
delivery of this Agreement and the issuance of the
Notes.
8.3.
Notices . All notices, demands or other communications
to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and delivered personally or sent
via a nationally recognized overnight courier. Such notices,
demands and other communications will be delivered or sent to the
address indicated below:
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If to the Company:
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1855 Lockeway Drive, Ste. 501
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Alpharetta, Georgia 30004
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Attention: Chief Executive Officer
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with a copy to:
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Ropes & Gray LLP
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One International Place
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Boston, Massachusetts 02110
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Fax: (617) 951-7050
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Attention: Lawrence D. Bragg III,
Esq.
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If to Purchaser:
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Wingate Capital, Ltd.
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c/o Citadel Limited Partnership
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131 South Dearborn
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Chicago, IL 60603
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Fax: (312) 267-7577
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Attention: Tony Buchanon
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with a copy to:
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Davis Polk Warwell
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450 Lexington Avenue
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New York, NY 10017
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Fax: (212) 450-3126
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Attention: Alan Dean
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or such other address or to the
attention of such other Person as the recipient party shall have
specified by prior written notice to the sending party. Any
such communication shall be deemed to have been received when
actually delivered or refused.
8.4.
Survival of Warranties and Certain Agreements . Any
liability of the Company for any breach of, or inaccuracy in, the
representations and warranties made by it herein shall survive the
execution and delivery of this Agreement and the sale and delivery
of the Notes but shall expire one year after the date of the
Closing.
8.5.
Heading . Section and subsection headings in this
Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose
or be given any substantive effect.
8.6.
Applicable Law . This Agreement shall be governed by,
and shall be construed and enforced in accordance with, the
internal laws of the State of New York.
8.7.
Successors and Assigns; Subsequent Holders . This
Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of
the parties hereto and the successors and assigns of the Purchaser;
provided , however , that the
Company’s rights hereunder may not be assigned without
the written consent of Purchaser; and provided
further , no assignee of purchaser of the Notes from the
Purchaser shall be entitled to rely on the representations and
warranties of the Company contained herein.
8.8.
Consent to Jurisdiction and Service of Process . All
judicial proceedings with respect to this Agreement or any Notes
may be brought in any state or federal court of competent
jurisdiction in the State of New York and by execution and delivery
of this Agreement the Company accepts for itself and in connection
with its properties, generally and unconditionally, the
jurisdiction of the aforesaid courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this
Agreement subject, however, to rights of appeal. The Company
hereby agrees that service upon it in the manner provided for the
giving of notices in Section 8.3 shall constitute sufficient
notice. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the
right of the Purchaser to bring proceedings against the
Company in the courts of any other jurisdiction.
8.9.
Waiver of Jury Trial . Each of the parties hereto
waives, to the full extent permitted by applicable law, trial by
jury in any litigation in any court with respect to, in connection
with, or arising out
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of this Agreement
or any other Document or the validity, protection, interpretation,
collection or enforcement thereof.
8.10.
Counterparts; Effectiveness . This Agreement and any
amendments, waivers, consents or supplements may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument. This Agreement
shall become effective upon the execution of a counterpart hereof
by each of the parties hereto, and when written or telephonic
notification of such execution and authorization of delivery
thereof has been received by the Company and the
Purchaser.
8.11.
USA PATRIOT ACT . The Purchaser is subject to the USA
PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “ Act ”) and hereby notifies the
Company that pursuant to the requirements of the Act, it may be
required to obtain, verify and record information that identifies
the Company, which information includes the name and address
of the Company and other information that will allow such Purchaser
to identify the Company in accordance with the Act. The
Company hereby agrees to provide any such information upon request,
and to the disclosure of such information pursuant to the
requirements of the Act and notwithstanding any other provision
hereof.
8.12.
Entirety . This Agreement embodies the entire
agreement among the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof and
thereof.
[Remainder of Page Intentionally
Left Blank.]
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by the respective
duly authorized officers of the undersigned and by the undersigned
as of the date first written above.
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COMPANY:
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CELLU TISSUE HOLDINGS, INC.
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By:
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/s/ Dianne M. Scheu
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Name:
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Dianne M. Scheu
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Title:
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Senior Vice President and
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Chief Financial Officer
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PURCHASER:
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WINGATE CAPITAL LTD.
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By:
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Citadel Limited Partnership,
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the Portfolio Manager
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By:
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Citadel Investment Group, LLC,
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Its General Partner
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By:
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/s/ Matthew Hinerfeld
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Name:
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Matthew Hinerfeld
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Title:
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Managing Director and
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Deputy General Counsel
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Signature page to Note Purchase
Agreement
APPENDIX I
TO NOTE PURCHASE AGREEMENT
“ Acquisition ”
has the meaning set forth in the Recitals to the
Agreement.
“ Acquisition Documents
” means (i) the Merger Agreement among the Company, Cellu
City Acquisition Corporation, CityForest Corporation and Wayne
Gullstad as the Shareholders’ Representative dated February
26, 2007, (ii) the Shareholder Support Agreement dated as of
February 26, 2007 entered into by John L. Morrison for the benefit
of the Company, (iii) the Shareholder Support Agreement dated as of
February 26, 2007 entered into by Wayne Gullstad and Carol Gullstad
for the benefit of the Company, (iv) the Paying Agent Agreement
among the Company, Cellu City Acquisition Corporation, Wayne
Gullstad in his capacity as the Shareholders’ Representative
and Wells Fargo Bank, N.A. as paying agent, dated as of March 21,
2007 and (v) the Escrow Agreement among the Company, Cellu City
Acquisition Corporation, Wayne Gullstad in his capacity as the
Shareholders’ Representative and Wells Fargo Bank, N.A. as
escrow agent dated as of March 21, 2007.
“ Agreement
” means the Note Purchase Agreement dated as of March 21,
2007 among the Company and the Purchaser, as from time to time in
effect, of which this Appendix is a part.
“ Closing ” shall
have the meaning set forth in Section 2.2 of the
Agreement.
“ Closing Date ”
means the date of the Closing on which the Notes are issued and
sold to the Purchaser pursuant to the Agreement.
“ Company ” shall
have the meaning set forth in the preamble to the
Agreement.
“ Company SEC Filings
” has the meaning set forth in Section 5.4.1 of the
Agreement.
“ Exchange Act ”
means the United States Exchange Act of 1934, as amended (and
any successor statute.)
“ GAAP ” means
generally accepted accounting principles as from time to time in
effect, including the statements and interpretations of the United
States Financial Accounting Standards Board and shall mean when
referring to any particular financial statement such principles as
in effect on the date of such financial statements.
“ Governing Documents
” means, with respect to any Person, such Person’s
articles and by-laws if a corporation, operating agreement, if a
limited liability company or unlimited liability company and
limited partnership agreement and certificate of limited
partnership, if a limited partnership, and other similar governing
documents, with respect to any other entity.
“ Governmental
Authority ” means any government, governmental
department, ministry, commission, board, bureau, agency or
instrumentality of any government, judicial, legislative or
administrative body having jurisdiction over the matter or matters
in question.
“ Indenture ” has
the meanings set forth in the Recitals to the Agreement.
“ Material Adverse
Effect ” means, since any specified date (or if no date
is specified, since September 30, 2006) or from the circumstances
existing immediately prior to the happening
of any specified event, a material
adverse change in the prospects, business, assets or financial
condition of the Company and its Subsidiaries on a consolidated
basis.
“ Notes ”
has the meaning set forth in the Recitals to the
Agreement.
“ Person ”
means any entity, whether of natural or legal constitution,
including any present or future individual, corporation,
partnership, joint venture, limited liability company, unlimited
liability company, trust, estate, unincorporated organization,
government or any agency or political subdivision
thereof.
“ Purchaser
” has the meaning set forth in the preamble to the
Agreement.
“ Securities Act
” means the United States Securities Act of 1933, as amended
(and any successor statute).
“ SEC ” means the
Securities and Exchange Commission of the United States.
“ Senior Secured Notes
” has the meaning set forth in the Recitals to the
Agreement.
“ Subsidiary ”
means any corporation, association or other business entity of
which more than 50% of the total ordinary voting power entitled to
vote on the election of directors, managers or trustees thereof (or
persons performing similar functions) is owned, directly
or
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