EXHIBIT 4.4
EXECUTION COPY
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of December 1, 1997,
among CRESTAR BANK (the "Trustee"), under the Indenture dated
December 1, 1997 made by Bear Island Paper Company, LLC ("BIPCO")
and Bear Island Finance Company ("XxxXx") in favor of the Trustee
(the "Indenture"); TORONTO-DOMINION (TEXAS), INC., as
Administrative Agent under the BIPCO Credit Agreement
(capitalized terms having the definitions set forth in Section 1
below; in such capacity, the "BIPCO Agent"); TORONTO-DOMINION
(TEXAS), INC., in its capacity as Administrative Agent under the
BAI Credit Agreement (in such capacity, the "BAI Agent"); and
BEAR ISLAND PAPER COMPANY, LLC ("BIPCO") and XXXXX-XXXXX
INDUSTRIES, INC. ("BAI"; together with BIPCO, the "Borrowers").
W I T N E S S E T H :
WHEREAS, BIPCO, a wholly owned subsidiary of BAI,
intends to make secured borrowings under the BIPCO Credit
Agreement;
WHEREAS, BAI intends to make secured borrowings under
the BAI Credit Agreement;
WHEREAS, BIPCO and its wholly owned subsidiary XxxXx
intend to issue secured notes under the Indenture;
WHEREAS, BAI and its affiliates have pledged certain
collateral ("Collateral") to secure their obligations under more
than one of the foregoing agreements;
WHEREAS, the parties hereto desire to set forth their
relative rights in respect of such shared collateral and the
security interests granted therein;
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
1. Definitions. (a) Unless otherwise defined herein,
terms defined in the Credit Agreements and the Loan Documents
have the meanings given to them in such documents.
(b) The following terms shall have the following meanings:
"Agreement": this Intercreditor Agreement, as the same
may be amended, supplemented or otherwise modified from time
to time.
"BAI Credit Agreement": the Credit Agreement, dated as
of the date hereof, among the BAI Agent, the BAI Lenders and
BAI, as amended, supplemented or otherwise modified from
time to time; for the purposes hereof, "BAI Credit
Agreement" shall also be deemed to refer to any credit
agreement or similar document entered into by BAI and any
lenders to replace the BAI Credit Agreement in whole or in
part.
"BAI Lenders": the lenders parties from time to time
to the BAI Credit Agreement in their capacity as lenders
thereunder, and their respective successors and assigns.
"BAI Lender Priority Collateral": any and all Lender
Priority Collateral pledged to secure the BAI Obligations.
"BAI Loan Documents": the collective reference to the
BAI Credit Agreement, each "Loan Document" as defined
therein and all other documents that from time to time
evidence the BAI Obligations or secure or support payment or
performance thereof or of any guarantee thereof.
"BAI Loan Parties": BAI and each other Loan Party
under (and as defined in) the BAI Loan Documents, and each
successor and assign of the foregoing.
"BAI Obligations": the Lender Obligations in respect
of the BAI Loan Documents.
"BIPCO Credit Agreement": the Credit Agreement, dated
as of the date hereof, among the BIPCO Agent, the BIPCO
Lenders and BIPCO, as amended, supplemented or otherwise
modified from time to time; for the purposes hereof, "BIPCO
Credit Agreement" shall also be deemed to refer to any
credit agreement or similar document entered into by BIPCO
and any lenders to replace the BIPCO Credit Agreement in
whole or in part.
"BIPCO Lenders": the lenders parties from time to time
to the BIPCO Credit Agreement in their capacity as lenders
thereunder, and their respective successors and assigns.
"BIPCO Lender Priority Collateral": any and all Lender
Priority Collateral pledged to secure the BIPCO Obligations.
"BIPCO Loan Documents": the collective reference to
the BIPCO Credit Agreement, each "Loan Document" as defined
therein and all other documents that from time to time
evidence the BIPCO Obligations or secure or support payment
or performance thereof or of any guarantee thereof.
"BIPCO Loan Parties": BIPCO and each other Loan Party
under (and as defined in) the BIPCO Loan Documents, and each
successor and assign of the foregoing.
"BIPCO Obligations": the Lender Obligations in respect
of the BIPCO Loan Documents.
"BITCO": Bear Island Timberlands Company, LLC, a
Virginia limited liability company.
"BITCO Collateral": the membership interests of BITCO
identified on Schedule 1 of the Timberlands Pledge
Agreement.
"Credit Agreements": the BAI Credit Agreement and the
BIPCO Credit Agreement.
"Lender Obligations": the collective reference to the
unpaid principal of and interest owing under the Credit
Agreements and all other obligations and liabilities of the
Borrowers thereunder, including, without limitation,
interest accruing at the applicable rate provided in the
Credit Agreements after the filing of any petition in
bankruptcy or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower
or any other party specified therein, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreements (including, without
limitation, any obligations under any Interest Rate
Protection Agreement referred to in a Credit Agreement),
this Agreement, the BAI Loan Documents, the BIPCO Loan
Documents or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise, including,
without limitation, all fees and disbursements of counsel
that are required to be paid by the Borrowers pursuant to
the terms of the Credit Agreements, this Agreement or, the
BAI Loan Documents or the BIPCO Loan Documents.
"Lender Priority Collateral": the collective reference
to any and all property from time to time subject to a
security interest to secure payment or performance of the
Lender Obligations or the Trustee Obligations.
"Loan Documents": the BAI Loan Documents and the BIPCO
Loan Documents.
"Loan Parties": the BAI Loan Parties and the BIPCO
Loan Parties.
"Senior Secured Lender": each of the BAI Agent, the
BIPCO Agent, each BAI Lender and each BIPCO Lender.
"Xxxxx Collateral": the "Pledged Stock" as defined in
the Xxxxx Pledge Agreement.
"Xxxxx Pledge Agreement": the Xxxxx Pledge Agreement
dated as of the date hereof, made by BAI in favor of the
BIPCO Agent and the BAI Agent and, for the purposes of this
Agreement, the notarial deed of hypothec granted on the
Collateral (as defined in the Xxxxx Pledge Agreement)
pursuant to the laws of the province of Quebec (Canada).
"Subordinated Security Documents": the collective
reference to any and all documents providing for collateral
security, guarantees or negative pledges in connection with
the notes issued under the Indenture as the same may be
amended, supplemented or otherwise modified from time to
time in accordance with Section 6.9 of the BIPCO Credit
Agreement.
"Timberlands Pledge Agreement": the meaning ascribed
in the BAI Credit Agreement.
"Trustee Documents": the collective reference to the
Indenture, the notes issued thereunder and the Subordinated
Security Documents.
"Trustee Obligations": the collective reference to the
unpaid principal of and interest owing under the Indenture
and the notes issued thereunder and all other obligations
and liabilities of BIPCO and XxxXx thereunder (including,
without limitation, interest accruing at the then applicable
rate provided in the Indenture and the notes issued
thereunder after the maturity of the principal obligations
owing thereunder and interest accruing at the then
applicable rate provided in the Indenture and the notes
issued thereunder after the filing of any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to BIPCO or
XxxXx, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Indenture, the
notes issued thereunder, this Agreement, or any other
Subordinated Security Document, in each case whether on
account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to
the Trustee that are required to be paid by the Borrower or
XxxXx pursuant to the terms of the Indenture or this
Agreement or any other Subordinated Security Document).
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Acknowledgements The Trustee (a) acknowledges that the
Borrowers and the other Loan Parties have granted senior priority
security interests in the Lender Priority Collateral to secure
the Lender Obligations and that such security interests are prior
in all respects to the junior security interests in the Lender
Priority Collateral granted to the Trustee, (b) agrees that the
Trustee shall not have any claim to or in respect of the BAI
Lender Priority Collateral, or any proceeds of or realization on
such BAI Lender Priority Collateral, on a parity with or prior to
the claim of the BAI Obligations, nor any claim to or in respect
of the BIPCO Lender Priority Collateral, or any proceeds of or
realization on such BIPCO Lender Priority Collateral, on a parity
with or prior to the claim of the BIPCO Obligations, and (c)
agrees that, notwithstanding such junior security interests and
any rights of the Trustee in respect thereof, (i) so long as the
BAI Obligations have not been paid in full or the commitments
under the BAI Credit Agreement have not been terminated, the
Trustee shall not have any right or claim in respect of the
exercise of rights and remedies of the Senior Secured Lenders in
respect of the BAI Lender Priority Collateral nor shall any
Senior Secured Lender have any obligation regarding any such
exercise or any other obligation or duty in respect of the
interests of the Trustee except as set forth in paragraph 3(d)
hereof, and that the Trustee shall not assert any such claim or
right in any such bankruptcy proceeding or otherwise, and (ii) so
long as the BIPCO Obligations have not been paid in full or the
commitments under the BIPCO Credit Agreement have not been
terminated, the Trustee shall not have any right or claim in
respect of the exercise of rights and remedies of the Senior
Secured Lenders in respect of the BIPCO Lender Priority
Collateral nor shall any Senior Secured Lender have any
obligation regarding any such exercise or any other obligation or
duty in respect of the interests of the Trustee except as set
forth in paragraph 3(d) hereof, and that the Trustee shall not
assert any such claim or right in any such bankruptcy proceeding
or otherwise.
3. Rights in Lender Priority Collateral (a) Notwithstanding
anything to the contrary contained in any filing or agreement to
which the Trustee, the Senior Secured Lenders or the Borrowers
now or hereafter may be a party and irrespective of the time,
order or method of attachment or perfection of the security
interests created by the Loan Documents or the Subordinated
Security Documents, the rules for determining priority under the
Uniform Commercial Code or any other law governing the relative
priorities of secured creditors, (i) any security interest in any
BAI Lender Priority Collateral in favor of or for the benefit of
the Senior Secured Lenders pursuant to the BAI Loan Documents has
and shall have priority, to the extent of any unpaid BAI Loan
Obligations, over any security interest in such BAI Lender
Priority Collateral in favor of or for the benefit of the Trustee
pursuant to the Subordinated Security Documents; and (ii) any
security interest in any BIPCO Lender Priority Collateral in
favor of or for the benefit of the Senior Secured Lenders
pursuant to the BIPCO Loan Documents has and shall have priority,
to the extent of any unpaid BIPCO Loan Obligations, over any
security interest in such BIPCO Lender Priority Collateral in
favor of or for the benefit of the Trustee pursuant to the
Subordinated Security Documents.
(b) (i) So long as the BAI Obligations have not been paid
in full or the commitments under the BAI Credit Agreement have
not been terminated, whether or not any bankruptcy proceeding or
similar event or proceeding has been commenced by or against BAI
or any other BAI Loan Party, (i) the Trustee will not (A)
exercise or seek to exercise any rights or exercise any remedies
with respect to any BAI Lender Priority Collateral, (B) institute
any action or proceeding with respect to such rights or remedies,
including without limitation, any action of foreclosure, (C)
contest, protest or object to any foreclosure proceeding or
action brought by the BAI Agent or any BAI Lender, or any other
exercise by any such party, of any rights and remedies relating
to the BAI Lender Priority Collateral under the Subordinated
Security Documents or otherwise, or any release of any or all of
the BAI Lender Priority Collateral for any purpose, or (D) object
to the forbearance by the BAI Lenders from bringing or pursuing
any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the BAI Lender Priority
Collateral, and (ii) the BAI Lenders shall have the exclusive
right to enforce rights, exercise remedies and make
determinations regarding release, disposition, or restrictions
with respect to the Lender Priority Collateral; provided, that in
any bankruptcy proceeding or similar event or proceeding
commenced by or against BAI or any other BAI Loan Party, the
Trustee may file a claim or statement of interest with respect to
the Trustee Obligations.
(ii) So long as the BIPCO Obligations have not been paid in full
or the commitments under the BIPCO Credit Agreement have not been
terminated, whether or not any bankruptcy proceeding or similar
event or proceeding has been commenced by or against BIPCO or any
other BIPCO Loan Party, (i) the Trustee will not (A) exercise or
seek to exercise any rights or exercise any remedies with respect
to any BIPCO Lender Priority Collateral, (B) institute any action
or proceeding with respect to such rights or remedies, including
without limitation, any action of foreclosure, (C) contest,
protest or object to any foreclosure proceeding or action brought
by the BIPCO Agent or any BIPCO Lender, or any other exercise by
any such party, of any rights and remedies relating to the BIPCO
Lender Priority Collateral under the Subordinated Security
Documents or otherwise, or any release of any or all of the BIPCO
Lender Priority Collateral for any purpose, or (D) object to the
forbearance by the BIPCO Lenders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the BIPCO Lender Priority
Collateral, and (ii) the BIPCO Lenders shall have the exclusive
right to enforce rights, exercise remedies and make
determinations regarding release, disposition, or restrictions
with respect to the Lender Priority Collateral; provided, that in
any bankruptcy proceeding or similar event or proceeding
commenced by or against BIPCO or any other BIPCO Loan Party, the
Trustee may file a claim or statement of interest with respect to
the Trustee Obligations.
(c) (i) In exercising rights and remedies with respect to
the BAI Lender Priority Collateral, the BAI Lenders may enforce
the provisions of the BAI Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such
exercise and enforcement shall include, without limitation, the
rights of an agent appointed by them to sell or otherwise dispose
of BAI Lender Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured lender under
the Uniform Commercial Code of any applicable jurisdiction and of
a secured creditor under bankruptcy or similar laws of any
applicable jurisdiction.
(ii) In exercising rights and remedies with respect to the BIPCO
Lender Priority Collateral, the BIPCO Lenders may enforce the
provisions of the BIPCO Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such
exercise and enforcement shall include, without limitation, the
rights of an agent appointed by them to sell or otherwise dispose
of BIPCO Lender Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured lender under
the Uniform Commercial Code of any applicable jurisdiction and of
a secured creditor under bankruptcy or similar laws of any
applicable jurisdiction.
(d) (i) BIPCO Lender Priority Collateral. Subject to the
provisions of paragraph 6 hereof, any money, property, securities
or other direct or indirect distributions of any nature
whatsoever received from the sale, disposition or other
realization upon a forclosure or other exercise of remedies upon
the occurrence and continuance of an Event of Default (as defined
in the Credit Agreements or the Indenture) by any Senior Secured
Party or the Trustee of all or any part of the BIPCO Lender
Priority Collateral (other than the BITCO Collateral and the
Xxxxx Collateral which constitute a part of the BIPCO Lender
Priority Collateral), regardless of whether such money, property,
securities or other distributions are received directly or
indirectly during the pendency of or in connection with any
bankruptcy, insolvency or other like proceeding or otherwise,
shall be delivered to the BIPCO Agent in the form received, duly
indorsed to such party, if required, and applied by the BIPCO
Agent in the following order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the BIPCO
Lender Priority Collateral or the protection of any of their
rights and interests therein;
Second, to the payment in full of all BIPCO Obligations
in the order prescribed by Section 2.16 of the BIPCO Credit
Agreement;
Third, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fourth, to pay the appropriate Loan Party or designee
thereof or as a court of competent jurisdiction may direct,
any surplus then remaining.
(ii) BITCO Collateral. Subject to the provisions of paragraph 6
hereof, any money, property, securities or other direct or
indirect distributions of any nature whatsoever received from the
sale, disposition or other realization upon a forclosure or other
exercise of remedies upon the occurrence and continuance of an
Event of Default (as defined in the Credit Agreements or the
Indenture) by any Senior Secured Party or the Trustee of all or
any part of the BITCO Collateral, regardless of whether such
money, property, securities or other distributions are received
directly or indirectly during the pendency of or in connection
with any bankruptcy, insolvency or other like proceeding or
otherwise, shall be delivered to the BAI Agent in the form
received, duly indorsed to such party, if required, and applied
by the BAI Agent in the following order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the BITCO
Collateral or the protection of any of their rights and
interests therein;
Second, to the payment in full of all BAI Obligations
in the order prescribed by Section 2.13 of the BAI Credit
Agreement;
Third, to the payment in full of all BIPCO Obligations
in the order prescribed by Section 2.16 of the BIPCO Credit
Agreement shall provide;
Fourth, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fifth, to pay to the appropriate Loan Party or designee
thereof or as a court of competent jurisdiction may direct,
any surplus then remaining.
(iii) Xxxxx Collateral. Subject to the provisions of paragraph
6 hereof, any money, property, securities or other direct or
indirect distributions of any nature whatsoever received from the
sale, disposition or other realization upon a forclosure or other
exercise of remedies upon the occurrence and continuance of an
Event of Default (as defined in the Credit Agreements or the
Indenture) by any Senior Secured Party or the Trustee of all or
any part of the Xxxxx Collateral, regardless of whether such
money, property, securities or other distributions are received
directly or indirectly during the pendency of or in connection
with any bankruptcy, insolvency or other like proceeding or
otherwise, shall be delivered to the BIPCO Agent or the BAI Agent
in the form received, duly indorsed to such party, if required,
and applied by the BIPCO Agent or the BAI Agent in the following
order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the Xxxxx
Collateral or the protection of any of their rights and
interests therein;
Second, pro rata to the payment in full of all BAI
Obligations and BIPCO Obligations, in such order as each of
Section 2.13 of the BAI Credit Agreement and Section 2.16 of
the BIPCO Credit Agreement, respectively, shall provide;
Third, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fourth, to pay to the appropriate Loan Party or
designee thereof or as a court of competent jurisdiction may
direct, any surplus then remaining.
(e) The BAI Lenders' rights with respect to the BAI Lender
Priority Collateral and the BIPCO Lenders' rights with respect to
the BIPCO Lender Priority Collateral shall include, without
limitation, the exclusive right to release at any time any or all
of such collateral from the liens under the Loan Documents and
the Subordinated Security Documents without the consent of the
Trustee and without any duty, obligation or liability arising
from any such action, provided, that such release is in
connection with the exercise of remedies in respect of the items
of Lender Priority Collateral so released. Upon any such sale,
release or other disposition of any Lender Priority Collateral,
the lien and security interest created for the benefit of the
Trustee pursuant to the Subordinated Security Documents in such
Lender Priority Collateral shall be automatically released, and
the Trustee shall execute or cause to be executed such release
documents and instruments and shall take such further actions as
the Senior Secured Lenders shall request.
(f) (A) Subject to the provisions of paragraph 6 hereof,
in the event that:
(i) the BAI Lenders, in exercise of their foreclosure or
similar remedies, have disposed of or otherwise realized
upon the BAI Lender Priority Collateral, or have been repaid
pursuant to a bankruptcy or similar proceeding at the
commencement of which the security interest securing the BAI
Obligations is in effect,
(ii) all of the BAI Obligations have been paid in full and
the commitments under the BAI Credit Agreement have been
terminated,
(iii) after giving effect thereto any BAI Lender Priority
Collateral remains that:
(x) never constituted BIPCO Lender Priority Collateral,
or has been released from the security interests
created by the BIPCO Loan Documents, and
(y) remains pledged pursuant to the Subordinated
Security Documents, and
(iv) at such time there are Trustee Obligations outstanding,
then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect
of BAI Lender Priority Collateral.
(B) Subject to the provisions of paragraph 6 hereof, in the
event that:
(i) the BIPCO Lenders, in exercise of their foreclosure or
similar remedies, have disposed of or otherwise realized
upon the BIPCO Lender Priority Collateral, or have been
repaid pursuant to a bankruptcy or similar proceeding at the
commencement of which the security interest securing the
BIPCO Obligations is in effect,
(ii) all of the BIPCO Obligations have been paid in full and
the commitments under the BIPCO Credit Agreement have been
terminated,
(iii) after giving effect thereto any BIPCO Lender Priority
Collateral remains that:
(x) never constituted BAI Lender Priority Collateral
or has been released from the security interests
created by the BAI Loan Documents, and
(y) remains pledged pursuant to the Subordinated
Security Documents, and
(iv) at such time there are Trustee Obligations outstanding,
then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect
of the BIPCO Lender Priority Collateral.
4. Obligations Unconditional. All rights, interests,
agreements and obligations of the Senior Secured Lenders and the
Trustee, respectively, hereunder shall remain in full force and
effect irrespective of:
(a) any lack of validity or enforceability of the Loan
Documents or any Trustee Documents;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Lender Obligations or
Trustee Obligations, or any amendment or waiver or other
modification, including any increase in the amount thereof,
whether by course of conduct or otherwise, of the terms of either
Credit Agreement or any other Loan Document or of the terms of
the Trustee Documents;
(c) any exchange, release or nonperfection of any security
interest in any Lender Priority Collateral or any other
collateral, or any release, amendment, waiver or other
modification, whether in writing or by course of conduct or
otherwise, of all or any of the Lender Obligations or Trustee
Obligations or any guarantee thereof;
(d) the commencement of any bankruptcy or similar
proceeding in respect of either of the Borrowers or any other
Loan Party; or
(e) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any Loan
Party in respect of the Lender Obligations or of the Trustee in
respect of this Agreement.
5. Waiver of Claims; Waivers of Jury Trial. (a) To the
maximum extent permitted by law, the Trustee waives any claim it
might have against any Senior Secured Lender with respect to, or
arising out of, any action or failure to act or any error of
judgment or negligence on the part of any Senior Secured Lender
or its respective directors, officers, employees or agents with
respect to any exercise of rights or remedies in respect of the
Lender Priority Collateral or any transaction relating to the
Lender Priority Collateral. Neither the BAI Agent, the BIPCO
Agent, any Senior Secured Lender nor any of their respective
directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of
any Loan Party, the Trustee or any other Person or to take any
other action whatsoever with regard to the Collateral or any part
thereof.
(b) THE BORROWERS, THE BAI AGENT (ON ITS OWN BEHALF AND ON
BEHALF OF THE BAI LENDERS), THE BIPCO AGENT (ON ITS OWN BEHALF
AND ON BEHALF OF THE BIPCO LENDERS) AND THE TRUSTEE HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR
COUNTERCLAIM THEREIN.
6. Provisions Define Relative Rights. This Agreement is
intended solely for the purpose of defining the relative rights
of the BAI Lenders, the BAI Agent, the BIPCO Lenders, the BIPCO
Agent and the Trustee, and no other Person shall have any right,
benefit or other interest under this Agreement. Notwithstanding
anything to the contrary contained herein, this Agreement shall
not modify or amend the rights and obligations of the Borrowers
or any other Loan Party under any Loan Document.
7. Shared Lender Priority Collateral. The BIPCO Agent and
the BAI Agent acknowledge that the Timberlands Pledge Agreement
and the Xxxxx Pledge Agreement create, in favor of Toronto-
Dominion (Texas), Inc., as secured party thereunder (in such
capacity, the "Agent"), security interests in Collateral to
secure both the BAI Obligations and the BIPCO Obligations. The
BIPCO Agent, on behalf of the BIPCO Lenders, and the BAI Agent,
on behalf of the BAI Lenders, hereby (i) confirm that the Agent
has been appointed as agent of such parties to be the secured
party under the Timberlands Pledge Agreement and the Xxxxx Pledge
Agreement, (ii) agree with the Agent that in taking and
refraining from actions under the Timberlands Pledge Agreement
(including amendments and waivers with respect thereto), the
Agent shall follow the directions of the Required Lenders under
the BAI Credit Agreement so long as the BAI Credit Agreement
remains outstanding, and thereafter shall follow the directions
of the Required Lenders under the BIPCO Credit Agreement and
(iii) agree with the Agent that in taking and refraining from
actions under the Xxxxx Pledge Agreement (including amendments
and waivers with respect thereto), the Agent shall follow the
directions of the Required Lenders under the BAI Credit Agreement
and the Required Lenders under the BIPCO Credit Agreement.
8. Payments in Ordinary Course. Notwithstanding any
provision of this Agreement limiting the rights of the holders of
the Trustee Obligations in the Collateral, nothing in this
Agreement shall prohibit BIPCO and XxxXx from making payments in
respect of the Trustee Obligations in the ordinary course of
business, whether or not the cash with which such payments are
made constitutes proceeds of Collateral.
9. Termination of Agreement; Acknowledgements. (a) The
rights of the Senior Secured Lenders under this Agreement in
respect of the Collateral securing only the BIPCO Obligations
shall terminate when the BIPCO Obligations have been paid in full
in cash and all commitments to extend credit under the BIPCO
Credit Agreement have terminated. The BIPCO Agent agrees that,
within 30 days after payment in cash of all principal, interest
and other amounts then outstanding under the BIPCO Obligations
and termination of all commitments to extend credit under the
BIPCO Credit Agreement, it will, upon the request of the Trustee,
provide a written acknowledgement of such payment to the Trustee,
which acknowledgement shall also acknowledge that the Senior
Secured Lenders have no further rights under this Agreement in
respect of the Collateral securing only the BIPCO Obligations.
Concurrently with such acknowledgement, the BIPCO Agent will
deliver to the Trustee if any of the Trustee Obligations shall be
outstanding, any items of such Collateral held in the possession
of the BIPCO Agent, provided that if no Trustee Obligations shall
be outstanding, the BIPCO Agent will deliver any such items of
Collateral to the appropriate Loan Party. The BIPCO Agent
acknowledges that prior to such delivery it holds such items of
Collateral for the Trustee in accordance with the terms of this
Agreement, for purposes of perfecting the Trustee's security
interest therein.
(b) The rights of the Senior Secured Lenders under this
Agreement in respect of the Collateral securing only the BAI
Obligations shall terminate when the BAI Obligations have been
paid in full in cash and all commitments to extend credit under
the BAI Credit Agreement have terminated. The BAI Agent agrees
that, within 30 days after payment of all principal, interest and
other amounts then outstanding under the BAI Obligations and
termination of all commitments to extend credit under the BAI
Credit Agreement, it will, upon the request of the Trustee,
provide a written acknowledgement of such payment to the Trustee,
which acknowledgement shall also acknowledge that the Senior
Secured Lenders have no further rights under this Agreement in
respect of the Collateral securing only the BAI Obligations.
Concurrently with such acknowledgement, the BAI Agent will
deliver to the Trustee if any Trustee Obligations shall be
outstanding any items of such Collateral held in the possession
of the BAI Agent, provided that if no Trustee Obligations are
outstanding, the BAI Agent will deliver any such items of
Collateral to the appropriate Loan Party. The BAI Agent
acknowledges that prior to such delivery it holds such items of
Collateral for the Trustee in accordance with the terms of this
Agreement for purposes of perfecting the Trustee's security
interest therein.
(c) The rights of the Senior Secured Lenders under this
Agreement in respect of all Collateral (to the extent not
previously terminated pursuant to paragraphs (a) and (b) above)
shall in any event terminate when all Lender Obligations have
been paid in full in cash and all commitments to extend credit
under the Loan Documents have terminated.
10. Powers Coupled With An Interest. All powers,
authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until the Lender
Obligations are paid in full and the commitments under the Credit
Agreements are terminated.
11. Notices. All notices, requests and demands to or upon
the parties to be effective shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (i) when delivered by hand
or (ii) if given by mail, when deposited in the mails by
certified mail, return receipt requested, or (iii) if by telex,
fax or similar electronic transfer, when sent and receipt has
been confirmed, addressed as follows:
If to the BAI Agent or
the BIPCO Agent: TORONTO-DOMINION (TEXAS), INC.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Trustee: CRESTAR BANK
Attention: Corporate Trust Department
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The parties hereto may change their addresses and transmission
numbers for notices by notice in the manner provided in this
Section.
12. Counterparts. This Agreement may be executed by one or
more of the parties on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the
counterparts of this Agreement signed by all the parties shall be
lodged with the BAI Agent, the BIPCO Agent and the Trustee.
13. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
14. Integration. This Agreement represents the entire
agreement of the Senior Secured Lenders and the Trustee with
respect to the subject matter hereof and there are no promises or
representations by any of them relative to the subject matter
hereof not reflected herein.
15. Amendments in Writing. None of the terms or provisions
of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the
BAI Agent, the BIPCO Agent, the Borrowers and the Trustee.
16. Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of each of the Senior
Secured Lenders and the Trustee and their successors and assigns.
(b) Upon a successor administrative agent becoming the
Administrative Agent under the BAI Credit Agreement or the BIPCO
Credit Agreement, such successor Administrative Agent
automatically shall become the BAI Agent or the BIPCO Agent, as
the case may be, hereunder with all the rights and powers of such
party hereunder, and bound by the provisions hereof, without the
need for any further action on the part of any party hereto.
(c) Upon a successor trustee becoming the Trustee under the
Indenture, such successor Trustee automatically shall become the
Trustee hereunder with all the rights and powers of the Trustee
hereunder, and bound by the provisions hereof, without the need
for any further action on the part of any party hereto.
17. Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed and interpreted in accordance with,
the law of the State of New York, excluding (to the greatest
extent permissible by law) any rule of law that would cause the
application of the laws of any jurisdiction other than the State
of New York. Each party hereto agrees that all judicial
proceedings brought against it arising out of or relating to this
Agreement or its obligations hereunder may be brought in any
federal court of competent jurisdiction in the State, County and
City of New York, and accepts generally and unconditionally the
nonexclusive jurisdiction and venue of such courts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
TORONTO-DOMINION (TEXAS), INC., as
BAI Agent and as BIPCO Agent, and
as Agent for the BAI Agent and the
BIPCO Agent
By: /s/ Xxxx Xxxx
Title: Vice President
CRESTAR BANK, as Trustee
By: /s/ Xxxxx X. XxXxxxx
Title: Vice President
Consented:
XXXXX-XXXXX INDUSTRIES, INC., as Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President of Finance
BEAR ISLAND PAPER COMPANY, as Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President of Finance
BEAR ISLAND FINANCE COMPANY II
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President of Finance
