JOINDER AND SUPPLEMENT NO. 7 to INTERCREDITOR AGREEMENT
Exhibit 10.10
EXECUTION VERSION
JOINDER AND SUPPLEMENT NO. 7
to
Reference is made to that certain Intercreditor Agreement, dated as of August 1, 2006 (as supplemented prior to, and on the date hereof through the execution and delivery of this Agreement and as the same may be further amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time, the “Intercreditor Agreement”), among Credit Suisse AG, Cayman Islands Branch (formerly, Credit Suisse, Cayman Islands Branch), as the former intercreditor agent (the “Former Intercreditor Agent”), Wilmington Trust Company, as Trustee (in such capacity, the “Former Trustee”), Verso Paper Finance Holdings LLC (“Holdings”), Verso Paper Holdings LLC (the “Company”), and the Subsidiaries of the Company party thereto, as supplemented by (i) that certain Supplement No. 1 to Intercreditor Agreement, dated as of May 29, 2009, among Verso Paper Five Corp., Verso Fiber Farm LLC and Verso Maine Energy LLC, the Former Intercreditor Agent and the Former Trustee; (ii) that certain Supplement No. 2 to Intercreditor Agreement, dated as of January 10, 2011, among Verso Quinnesec REP Holding Inc., the Former Intercreditor Agent and the Former Trustee; (iii) that certain Joinder and Supplement No. 3 to Intercreditor Agreement, dated as of January 26, 2011 by and among, (A) Wilmington Trust Company, as trustee (the “Former Second-Priority Designated Agent”) pursuant to that certain Indenture dated as of January 26, 2011, among the Company, Verso Paper Inc. (together with the Company, the “Issuers”), the guarantors party thereto and the Former Second-Priority Designated Agent, (B) Holdings, (C) the Issuers, (D) the Former Intercreditor Agent, (E) the Subsidiaries of the Company party thereto and (F) the Former Trustee; (iv) that certain Joinder and Supplement No. 4 to Intercreditor Agreement, dated as of May 4, 2012 by and among (A) Citibank, N.A., as Intercreditor Agent (the “Intercreditor Agent”) and as administrative agent (the “ABL Agent”) pursuant to that certain Credit Agreement dated as of May 4, 2012 (the “ABL Credit Agreement”) among the Company, Holdings, the lenders party thereto, the Subsidiaries of Holdings party thereto and the ABL Agent, (B) Credit Suisse AG, Cayman Islands Branch, as administrative agent (the “Cash Flow Agent”) pursuant to that certain Credit Agreement dated as of May 4, 2012 (the “Cash Flow Credit Agreement”) among the Company, Holdings, the lenders party thereto, the Subsidiaries of Holdings party thereto and the Cash Flow Agent, (C) Wilmington Trust, National Association, as trustee (the “11.75% Notes Agent”) pursuant to that certain Indenture dated as of March 21, 2012 among the Issuers, the guarantors party thereto and the 11.75% Notes Agent, (D) the Former Intercreditor Agent, (E) the Former Second-Priority Designated Agent, (F) Holdings, (G) the Company and (H) each Subsidiary of Holdings party thereto; (v) that certain Joinder and Supplement No. 5 to Intercreditor Agreement, dated as of May 11, 2012 by and among (A) Wilmington Trust, National Association, as trustee (the “New Senior-Priority Agent”) pursuant to that certain Indenture dated as of May 11, 2012 with respect to the issuance of the Company’s 11.75% Secured Notes due 2019, (B) the Intercreditor Agent, (C) the Former Second-Priority Designated Agent, (D) Holdings, (E) the Company and (F) each Subsidiary of the Company party thereto; and (vi) that certain Joinder and
Supplement No. 6 to the Intercreditor Agreement, dated as of August 1, 2014, by and among (A) Wilmington Trust, National Association, as trustee (the “New Second Lien Notes Trustee”) pursuant to that certain Indenture dated as of August 1, 2014 with respect to the issuance of the Company’s Second Priority Adjustable Senior Secured Notes, (B) the Intercreditor Agent, (C) Holdings, (D) the Issuers, and (E) each Subsidiary party thereto. Capitalized terms used but not defined herein shall have the meanings assigned in the Intercreditor Agreement.
This Joinder and Supplement No. 7 to the Intercreditor Agreement (this “Agreement”), dated as of January 7, 2015 (the “Effective Date”), by and among (i) Wilmington Trust, National Association, as trustee (the “New Trustee”) pursuant to that certain Indenture dated as of the date hereof (the “New Indenture”) among the Company, Verso Paper Inc. (together with the Company, the “Issuers”), the guarantors party thereto and the New Trustee, (ii) Holdings, (iii) the Intercreditor Agent, (iv) the New Second Lien Notes Trustee, (v) the Issuers, (vi) each Subsidiary of the Issuers listed on Schedule I hereto and (vii) NewPage Holdings LLC, a Delaware limited liability company (the “New Subsidiary”), has been entered into to (A) record the accession of the New Subsidiary as a party to the Intercreditor Agreement, (B) record the accession of the New Trustee as an additional Senior-Priority Agent in respect of Future First-Lien Indebtedness under the Intercreditor Agreement on behalf of the holders of the new 11.75% Senior Secured Notes due 2019 (the “New Notes”) issued under the New Indenture, (C) with respect to the Liens securing certain Obligations as set forth below, to confirm and evidence that such Liens shall, for purposes of the Intercreditor Agreement, be equal and ratable for purposes hereof and sharing pro rata in any proceeds of the Collateral or amounts recovered in connection therewith with all Liens on the Common Collateral securing any other Senior Lender Claims, (D) to add NewPage Holdings Inc. (“NewPage Holdings”), as a Subsidiary, and (E) for certain related purposes.
The parties to this Agreement hereby agree as follows:
| (i) | Designation of NewPage Holdings as a Subsidiary |
In accordance with Section 8.22 of the Intercreditor Agreement, the New Subsidiary by its signature below becomes a party under the Intercreditor Agreement with the same force and effect as if originally named therein as a Subsidiary, and the New Subsidiary hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Subsidiary thereunder.
| (ii) | Joinder of the New Notes |
A. The New Trustee, as agent for the New Indenture secured parties, shall become, with immediate effect, a party to and agrees to be bound by the terms of the Intercreditor Agreement as a Senior-Priority Agent, as if it had originally been party to the Intercreditor Agreement as a Senior-Priority Agent.
B. The New Indenture, the New Notes, the Security Documents (as defined in the New Indenture), and any related document or instrument executed and
2
delivered pursuant to any of the foregoing shall constitute Senior Lender Documents, and the Security Documents (as defined in the New Indenture) are designated as and shall constitute Senior Collateral Documents. The Collateral Agreement dated as of the date hereof among the Issuers, each Subsidiary of the Issuers identified therein, and the New Trustee, as collateral agent, is designated as and shall constitute a Senior Collateral Document.
C. The Liens securing the Obligations under the New Notes, the New Indenture and any other document or agreement entered into pursuant thereto granted pursuant to the Security Documents constitute Liens securing Senior Lender Claims. The New Trustee and the holders of the New Notes shall be Senior Lenders for all purposes thereunder. The Obligations under each of the New Notes, the New Indenture and any other document or agreement entered into pursuant thereto constitute Future First-Lien Indebtedness or First-Lien Indebtedness, as applicable, and Senior Lender Claims, ranking in all cases pari passu in time and effect with the other Senior Lender Claims for purposes of the Intercreditor Agreement (subject to, with respect to each class of Senior Lender Claims, to the applicable provisions of the relevant Senior Lender Documents).
D. The Liens on the Common Collateral securing such Senior Lender Claims shall, for purposes of the Intercreditor Agreement (subject to, with respect to each class of Senior Lender Claims, to the applicable provisions of the relevant Senior Lender Documents) have equal and ratable priority in all respects to all Liens on the Common Collateral securing any other Senior Lender Claims on the terms set forth in the Intercreditor Agreement and shall be senior to all Liens on the Common Collateral securing any Second-Priority Claims on the terms set forth in the Intercreditor Agreement.
E. The New Senior-Priority Agent, on behalf of the New Lenders, hereby designates the Intercreditor Agent (as defined under the Senior Lien Intercreditor Agreement, dated as of May 4, 2012, by and among others, Credit Suisse AG, Cayman Islands Branch, Citibank, N.A., Wilmington Trust, National Association, Holdings and the Company), as “Intercreditor Agent” under the Intercreditor Agreement until such time as another such designated agent is appointed pursuant to the terms thereof, and the parties hereto therefore accept and agree to such designation. For the avoidance of doubt, the provisions of Article 7 of the New Indenture applicable to the New Trustee thereunder shall also apply to the New Trustee acting under or in connection with the Intercreditor Agreement.
F. So long as the Discharge of Senior Lender Claims has not occurred, the Common Collateral or proceeds (and any proceeds of any title insurance policies with respect to any Common Collateral) thereof received in connection with the sale or other disposition of, or collection on, the Common Collateral upon the exercise of remedies shall be applied by the Intercreditor Agent ratably to the Senior Lender Claims and, with respect to each class of Senior Lender Claims, in such order as is specified in the relevant Senior Lender Documents until the Discharge of Senior Lender Claims has occurred. Upon the Discharge of Senior Lender Claims, the Intercreditor Agent shall deliver promptly to the Second-Priority Designated Agent any Common Collateral or
3
proceeds thereof (and any proceeds of any title insurance policies in favor of any Second-Priority Agent with respect to any Common Collateral) held by it in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct, to be applied by the Second-Priority Designated Agent ratably to the Second-Priority Claims and, pro rata with respect to each class of Second-Priority Claims, in such order as specified in the relevant Second-Priority Documents.
G. The New Trustee confirms that its address for notices pursuant to the Intercreditor Agreement is as follows:
Wilmington Trust, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Capital Markets – Verso Paper Administrator
Copy to Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
H. Each party to this Agreement (other than the New Trustee) confirms the acceptance of the New Trustee as a Senior-Priority Agent, and New Subsidiary as Subsidiary for purposes of the Intercreditor Agreement.
| (iii) | Governing Law |
This Agreement shall be construed in accordance with and governed by the laws of the State of New York.
| (iv) | Miscellaneous |
This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
[SIGNATURE PAGES FOLLOW]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
| NEWPAGE HOLDINGS INC., |
| as New Subsidiary |
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Title: | Senior Vice President and Chief | |
| Financial Officer | ||
[Signature Page to Joinder to Intercreditor Agreement]
| WILMINGTON TRUST, NATIONAL ASSOCIATION, |
| as a Senior-Priority Agent for holders of the New Notes |
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | Vice President | |
[Signature Page to Joinder to Intercreditor Agreement]
Notice of this Agreement is hereby acknowledged and received by:
| CITIBANK, N.A., |
| as Intercreditor Agent |
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Vice President | |
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Vice President | |
[Signature Page to Joinder to Intercreditor Agreement]
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Second-Priority Designated Agent
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | Vice President | |
[Signature Page to Joinder to Intercreditor Agreement]
| VERSO PAPER FINANCE HOLDINGS LLC |
| VERSO PAPER HOLDINGS LLC |
| VERSO PAPER INC. |
| VERSO PAPER LLC |
| VERSO ANDROSCOGGIN LLC |
| VERSO BUCKSPORT LLC |
| VERSO FIBER FARM LLC |
| VERSO MAINE ENERGY LLC |
| VERSO QUINNESEC LLC |
| VERSO SARTELL LLC |
| VERSO QUINNESEC REP HOLDING INC. |
| NEXTIER SOLUTIONS CORPORATION |
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Title: | Senior Vice President and Chief Financial Officer |
[Signature Page to Joinder to Intercreditor Agreement]
Schedule I
Verso Paper Inc., a Delaware corporation
Verso Paper LLC, a Delaware limited liability company
Verso Androscoggin LLC, a Delaware limited liability company
Verso Bucksport LLC, a Delaware limited liability company
Verso Fiber Farm LLC, a Delaware limited liability company
Verso Maine Energy LLC, a Delaware limited liability company
Verso Quinnesec LLC, a Delaware limited liability company
Verso Sartell LLC, a Delaware limited liability company
Verso Quinnesec REP Holding Inc., a Delaware corporation
nexTier Solutions Corporation, a California corporation
NewPage Holdings Inc., a Delaware corporation