Exhibit 4.4


 


INTERCREDITOR
AGREEMENT


 


This INTERCREDITOR AGREEMENT
(“Agreement”), is dated as
of May 2, 2005, and entered into by and among NewPage Corporation (the “Company”), NewPage Holding Corporation (“Holdings”),
certain subsidiaries of the Company (the “Subsidiary
Guarantors” and together with
Holdings, the “Guarantors”), JPMorgan Chase Bank, in its capacity
as collateral agent for the Revolving Credit Lenders (including its successors
and assigns from time to time, the “Revolving
Credit Agent”) and The
Bank of New York, in its capacity as collateral trustee (including its
successors and assigns from time to time, the “Collateral Trustee”) for (i) Goldman Sachs Credit Partners L.P., in its capacity as
agent for the First Lien Term Loan Lenders (including its successors and
assigns from time to time, the “First Lien
Term Loan Agent”), and
the First Lien Term Loan Lenders, (ii) the Trustees for the Noteholders and the
Noteholders, and (iii) any future Parity Lien Representative, Parity Lien Claimholders,
Priority Lien Representative or Priority Lien Claimholders. As described in
more detail in Section 8.11 hereof, this Agreement is intended to be
binding on all Claimholders and Secured Debt Representatives, as well as the
Revolving Credit Agent and the Collateral Trustee. Capitalized terms used in
this Agreement have the meanings assigned to them in Section 1 below.


 


RECITALS


 


The Company, the Guarantors, the lenders (the “Revolving Credit Lenders”) and agents party thereto, and
Revolving Credit Agent, have entered into that Revolving Credit and Guaranty
Agreement dated as of the date hereof providing for a revolving credit facility
(as amended, restated, supplemented, modified, replaced or refinanced from time
to time, the “Revolving Credit Agreement”);


 


The Company, the Guarantors, the lenders (the “First Lien Term Loan Lenders”) and agents party thereto, and the
First Lien Term Loan Agent, have entered into that First Lien Term Loan Credit
and Guaranty Agreement dated as of the date hereof providing for the making of
certain term loans (as amended, restated, supplemented, modified, replaced or
refinanced from time to time, the “First Lien
Term Loan Agreement”);


 


The Company is also issuing (i) the floating rate senior secured notes
in the aggregate principal amount not to exceed $225 million (including any
related exchange notes, the “Floating Rate Notes”) pursuant to an Indenture dated as of the date hereof
(as amended, supplemented, amended and restated or otherwise modified and in
effect from time to time, the “Floating Rate Notes Indenture”) among
the Company, the guarantors party thereto and HSBC Bank USA, National
Association, as trustee (in such capacity and including its successors and
assigns from time to time, the “Floating Rate
Notes Trustee”) and
(ii) the 10% senior secured notes in the aggregate principal amount not to
exceed $350 million (including any related exchange notes, the “10% Senior Secured Notes”
and together with the Floating Rate Notes, the “Notes”)
pursuant to an Indenture dated as of the date hereof (as amended, supplemented,
amended and restated or otherwise modified and in effect from time to time, the
“10%  Senior
Secured Notes Indenture”) among the Company,
the guarantors party thereto and HSBC Bank USA, National Association, as trustee
(in such capacity and including its successors and assigns


 





















 


from time to time, the “10% Senior Secured Notes Trustee” and,
together with the Floating Rate Notes Trustee, the “Trustees”);


 


The obligations of the Company to (i) the Revolving Credit Agent and
Revolving Credit Claimholders and (ii) the Secured Debt Representatives and the
Secured Debt Claimholders are each secured by Liens on certain of the assets of
the Company and the Guarantors; and


 


As a condition to the closing of each of the “Financing Transactions”,
each of the Revolving Credit Agent, the Collateral Trustee, the Secured Debt
Representatives and the various Claimholders have agreed to the relative
priority of their respective Liens on the Collateral and certain other rights,
priorities and interests as set forth in this Agreement.


 


AGREEMENT


 


In consideration of the foregoing, the mutual covenants and obligations
herein set forth and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:


 


I.                                         DEFINITIONS.


 


1.1                                 Defined Terms. As used in the Agreement, the following
terms shall have the following meanings:


 


“10% Senior Secured Notes” has the
meaning assigned to that term in the recitals to this Agreement.


 


“10% Senior Secured Notes Indenture” has the meaning assigned to that term in the
recitals to this Agreement.


 


“10% Senior Secured Notes Trustee” has the meaning assigned to that
term in the recitals to this Agreement.


 


“Access Period” means for each parcel of Mortgaged Premises
the period, after the commencement of an Enforcement Period, which begins on
the day that Revolving Credit Agent (or, following the Discharge of Revolving
Credit Obligations, a Priority Lien Representative) provides Collateral Trustee
with the notice of its election to request access pursuant to Section 3.3(b)
below and ends on the earlier of (i) the 180th day after Revolving
Credit Agent obtains the ability to use, take physical possession of, remove or
otherwise control the use or access to the Revolving Credit Collateral located
on such Mortgaged Premises following Enforcement plus such number of days, if
any, after Revolving Credit Agent (or, following the Discharge of Revolving Credit
Obligations, the Collateral Trustee acting upon direction of the Priority Lien
Claimholders or a Priority Lien Representative acting on behalf of the
Collateral Trustee) obtains access to such Revolving Credit Collateral that it
is stayed or otherwise prohibited by law or court order from exercising
remedies with respect to Revolving Credit Collateral located on such Mortgaged
Premises or (ii) the date on which all or substantially all of the Revolving
Credit Collateral located on such Mortgaged Premises is sold,


 


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collected or liquidated or (iii) the date on which the Discharge of
Revolving Credit Obligations and the Discharge of Priority Lien Obligations
occurs.


 


“Accounts”
means all now present and future “accounts” and “payment intangibles” (in each
case, as defined in Article 9 of the UCC).


 


“Account Agreements” means any lockbox account agreement, pledged account agreement,
blocked account agreement, securities account control agreement, or any similar
deposit or securities account agreements among the Collateral Trustee and/or
Revolving Credit Agent and the Company and/or a Guarantor and the relevant
financial institution depository or securities intermediary.


 


“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 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.


 


“Agreement” means this Intercreditor Agreement, as amended, restated, renewed, extended,
supplemented or otherwise modified from time to time.


 


“Bankruptcy Code” means Title 11 of the United States Code
entitled “Bankruptcy,” as now and hereafter in effect, or any successor
statute.


 


“Bankruptcy Law”
means the Bankruptcy Code and any similar federal, state or foreign law for the
relief of debtors.


 


“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 or board of
directors of such company or of the sole member or of the managing member
thereof and (4) with respect to any other Person, the board or committee of
such Person serving a similar function.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.


 


“Capital Stock”
means:


 


(1)                                  in the case of a corporation, corporate
stock;


 


(2)                                  in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;


 


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(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.


 


“Chattel Paper” means all present and future “chattel paper”
(as defined in Article 9 of the UCC).


 


“Claimholders” means the Revolving Credit Claimholders and
each of the Parity Lien Claimholders and Priority Lien Claimholders.


 


“Class” means (i) in the case of Parity Lien Debt, all Series of Parity Lien
Debt, taken together and (ii) in the case of Priority Lien Debt, all Series of
Priority Lien Debt, taken together.


 


“Collateral” means all of the assets and property of any Grantor, whether real, personal
or mixed, constituting either Revolving Credit Collateral, Shared Collateral or
Separate Collateral.


 


“Collateral Trust Agreement” means that certain Collateral Trust Agreement
dated as of May 2, 2005 (as the same may be amended from time to time) by and
among the First Lien Term Loan Agent, the Trustees and the Collateral Trustee,
as amended, restated, modified or replaced from time to time.


 


“Collateral Trustee” has the meaning assigned to that term in the
preamble to this Agreement.


 


“Company” has the meaning assigned to that term in the preamble to this
Agreement.


 


“Copyright Licenses” means any and all present and future
agreements providing for the granting of any right in or to Copyrights (whether
such Grantor is licensee or licensor thereunder).


 


“Copyrights” means all present and future United States, and foreign copyrights
(including Community designs), including but not limited to copyrights in
software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of
the U.S. Copyright Act), whether registered or unregistered, and, with respect
to any and all of the foregoing: (i) all registrations and applications
therefore, (iii) all rights corresponding thereto throughout the world, and
(iv) all rights to sue for past, present and future infringements thereof.


 


“Deposit Accounts” means all present and future “deposit
accounts” (as defined in Article 9 of the UCC).


 


“DIP Financing” has the meaning assigned to that term in Section 6.1.


 


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“Discharge of Parity Lien Obligations” means, except to the extent otherwise
expressly provided in Section 5.5:


 


(1)                                  termination or expiration of all commitments
to extend credit that would constitute Parity Lien Debt;


 


(2)                                  payment in full in cash of the principal of
and interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceeding, whether or not such interest would be
allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness
outstanding under the Parity Lien Documents and constituting Parity Lien Debt;


 


(3)                                  discharge or cash collateralization (at the
lower of (A) 105% of the aggregate undrawn amount and (b) the percentage of the
aggregate undrawn amount required for release of Liens under the terms of the
applicable Parity Lien Document) of all outstanding letters of credit constituting
Parity Lien Debt; and


 


(4)                                  payment in full in cash of all other Parity
Lien Obligations that are outstanding and unpaid at the time the Parity Lien
Debt is paid in full in cash (other than any obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities in respect of
which no claim or demand for payment has been made at such time).


 


If a Discharge of Parity Lien Obligations occurs prior to the
termination of this Agreement in accordance with Section 8.2, to the
extent that additional Parity Lien Obligations are incurred or Parity Lien
Obligations are reinstated in accordance with Section 6.4, the Discharge
of Parity Lien Obligations shall (effective upon the incurrence of such
additional Parity Lien Obligations or reinstatement of such Parity Lien
Obligations, as applicable) be deemed to no longer be effective.


 


“Discharge of Priority Lien Obligations” means, except to the extent otherwise expressly
provided in Section 5.5:


 


(1)                                  termination or expiration of all commitments
to extend credit that would constitute Priority Lien Debt;


 


(2)                                  payment in full in cash of the principal of
and interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceeding, whether or not such interest would be
allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness
outstanding under the Priority Lien Documents and constituting Priority Lien Obligations;


 


(3)                                  discharge or cash collateralization (at the
lower of (A) 105% of the aggregate undrawn amount and (b) the percentage of the
aggregate undrawn amount required for release of Liens under the terms of the
applicable Priority Lien Document) of all outstanding letters of credit
constituting Priority Lien Debt; and


 


(4)                                  payment in full in cash of all other Priority
Lien Obligations that are outstanding and unpaid at the time the Priority Lien
Debt is paid in full in cash (other than any


 


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obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities in respect of which no claim or
demand for payment has been made at such time).


 


If a Discharge of Priority Lien Obligations occurs prior to the
termination of this Agreement in accordance with Section 8.2, to the
extent that additional Priority Lien Obligations are incurred or Priority Lien
Obligations are reinstated in accordance with Section 6.4, the Discharge
of Priority Lien Obligations shall (effective upon the incurrence of such
additional Priority Lien Obligations or reinstatement of such Priority Lien
Obligations, as applicable) be deemed to no longer be effective.


 


“Discharge of Revolving Credit Obligations” means, except to the extent otherwise
expressly provided in Section 5.5:


 


(1)                                  termination or expiration of all commitments,
if any, to extend credit that would constitute Revolving Credit Obligations;


 


(2)                                  payment in full in cash of the principal of
and interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceeding, whether or not such interest would be
allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness
outstanding under the Revolving Credit Loan Documents and constituting Revolving
Credit Obligations;


 


(3)                                  termination or cash collateralization (in an
amount and manner reasonably satisfactory to the Revolving Credit Agent, but in
no event greater than 105% of the aggregate undrawn face amount) of all letters
of credit issued under the Revolving Credit Loan Documents and constituting Revolving
Credit Obligations; and


 


(4)                                  payment in full in cash of all other
Revolving Credit Obligations that are outstanding and unpaid at the time the
Indebtedness constituting such Revolving Credit Obligations is paid in full in
cash (other than any obligations for taxes, costs, indemnifications, reimbursements,
damages and other liabilities in respect of which no claim or demand for payment
has been made at such time).


 


If a Discharge of Revolving Credit Obligations occurs prior to the
termination of this Agreement in accordance with Section 8.2, to the
extent that additional Revolving Credit Obligations are incurred or Revolving
Credit Obligations are reinstated in accordance with Section 6.4, the
Discharge of Revolving Credit Obligations shall (effective upon the incurrence
of such additional Revolving Credit Obligations or reinstatement of such
Revolving Credit Obligations, as applicable) be deemed to no longer be
effective.


 


“Discharge
of Secured Debt Obligations” means the occurrence of both the Discharge of Parity Lien Obligations
and the Discharge of Priority Lien Obligations.


 


“Disposition” has the meaning assigned to that term in Section 5.l(b).


 


“Enforcement” means, collectively or individually for any
one of the Revolving Credit Agent, the Collateral Trustee, or any Secured Debt
Representative when a Revolving Credit Default or a Secured Debt Default, as
the case may be, has occurred and is continuing,


 


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any action taken by such Person to repossess, or
exercise any remedies with respect to, any material amount of Collateral or
commence the judicial enforcement of any of the rights and remedies under the
Revolving Credit Loan Documents or the Secured Debt Documents or under any
applicable law, but in all cases excluding (i) the imposition of a default rate
or late fee and (ii) the collection and application of Accounts or other monies
deposited from time to time in Bank Accounts or Securities Accounts against the
Revolving Credit Obligations pursuant to the Revolving Credit Loan Documents; provided,
however, the foregoing exclusion set forth in clause (ii) shall
immediately cease to apply upon the earlier of (x) the Revolving Credit Agent’s
delivery of written notice to the Borrowers that such exclusion no longer
applies, (y) the lapse of ten (10) consecutive Business Days after a Revolving
Credit Default in which no “Revolving Loans” or “Special Agent Advances” are
made and no “Letters of Credit” are issued (in each case, as defined in the
Revolving Credit Agreement), and (z) the termination of the Revolving Commitments
pursuant to Section 8.1 (or any other applicable provision) of the
Revolving Credit Agreement.


 


“Enforcement Notice” means a written notice delivered, at a time when a Revolving Credit
Default or Secured Debt Default has occurred and is continuing, by either Revolving
Credit Agent or Collateral Trustee to the other such Person announcing that an Enforcement
Period has commenced, specifying the relevant event of default, stating the
current balance of the Revolving Credit Obligations or the current balances
owing with respect to Parity Lien Obligations and Priority Lien Obligations, as
the case may be, and requesting the current balance owing of the Revolving
Credit Obligations or Parity Lien Obligations and Priority Lien Obligations, as
the case may be.


 


“Enforcement Period” means the period of time following the receipt by either Revolving
Credit Agent or Collateral Trustee of an Enforcement Notice from the other
until either (i) in the case of an Enforcement Period commenced by Collateral
Trustee, the Discharge of Secured Debt Obligations, or (ii) in the case of an
Enforcement Period commenced by Revolving Credit Agent, the Discharge of
Revolving Credit Obligations, or (iii) Revolving Credit Agent or Collateral
Trustee (as applicable) agree in writing to terminate the Enforcement Period.


 


“Equally and Ratably” means, in reference to sharing of Liens or proceeds thereof as between
holders of Secured Obligations within the same Class, “equally and ratably” as
defined in the Collateral Trust Agreement.


 


“Equipment”
means: (i) all “equipment” (as defined in Article 9 of the UCC), (ii) all
machinery, manufacturing equipment, data processing equipment, computers,
office equipment, furnishings, furniture, appliances, “fixtures” (as defined in
the UCC) and tools (in each case, regardless of whether characterized as
equipment under the UCC) and (iii) all accessions or additions thereto, all
parts thereof, whether or not at any time of determination incorporated or
installed therein or attached thereto, and all replacements therefore, wherever
located, now or hereafter existing, including any fixtures.


 


“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).


 


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“Financing Transactions” means the execution, delivery and initial
funding under the Revolving Credit Agreement and the First Lien Term Loan
Agreement and the issuance of the Notes.


 


“First Lien Term Loan Agent” has the meaning assigned to that term in the
preamble of this Agreement.


 


“First Lien Term Loan Agreement” has the meaning assigned to that term in the
recitals to this Agreement.


 


“First Lien Term Loan Documents” means the First Lien Term Loan Agreement, the
First Lien Term Loan Mortgages and the other Credit Documents (as defined in the
First Lien Term Loan Agreement) and each of the other agreements, documents and
instruments providing for or evidencing any other First Lien Term Loan Obligation,
and any other document or instrument executed or delivered at any time in
connection with any First Lien Term Loan Obligations, including any
intercreditor or joinder agreement among holders of First Lien Term Loan
Obligations to the extent such are effective at the relevant time, as each may
be amended, restated, supplemented, modified, renewed or extended from time to
time in accordance with the provisions of this Agreement.


 


“First Lien Term Loan Lenders” has the meaning assigned to that term in the recitals
to this Agreement.


 


“First Lien Term Loan Mortgages” means a
collective reference to each mortgage, deed of trust and any other document or
instrument under which any Lien on real property owned or leased by any Grantor
is granted to secure any First Lien Term Loan Obligations or (except for this
Agreement and the Collateral Trust Agreement) under which rights or remedies
with respect to any such Liens are governed.


 


“First Lien Term Loan Obligations” means all Obligations with respect to principal
of and interest and premium (if any) on Indebtedness incurred and outstanding
under the First Lien Term Loan Agreement and the other First Term Loan
Documents. “First Lien Term Loan Obligations” shall include all interest
accrued or accruing (or which would, absent commencement of an Insolvency or
Liquidation Proceeding, accrue) after commencement of an Insolvency or
Liquidation Proceeding in accordance with the rate specified in the relevant
First Lien Term Loan Document whether or not the claim for such interest is
allowed as a claim in such Insolvency or Liquidation Proceeding.


 


“Floating Rate Notes” has the
meaning assigned to that term in the recitals to this Agreement.


 


“Floating Rate Notes Indenture” has the meaning assigned to that term in the
recitals to this Agreement.


 


“Floating Rate Notes Trustee” has
the meaning assigned to that term in the recitals to this Agreement.


 


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“General Intangibles” means all present and future “general
intangibles” (as defined in Article 9 of the UCC), but excluding “payment
intangibles” (as defined in Article 9 of the UCC), Hedge Agreements and
Intellectual Property and any rights thereunder.


 


“Grantors” means the Company, each Guarantor and each other Person that has or may
from time to time hereafter execute and deliver a Revolving Credit Collateral
Document, Parity Lien Collateral Document or Priority Lien Collateral Document
as a “Grantor” (or the equivalent thereof).


 


“Guarantor” has the meaning set forth in the preamble to this Agreement.


 


“Hedge Agreements” means any (i) interest rate swap agreements
(whether from fixed to floating or from floating to fixed), interest rate cap
agreements, interest rate collar agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping interest
rate risk; (ii) other agreements or arrangements designed to manage interest
rates or interest rate risk; and (iii) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange rates
or commodity prices.


 


“Hedging Obligation” of any Person means any Obligation of such
Person pursuant to any Hedge Agreement.


 


“Holdings” has the meaning set forth in the recitals to this Agreement.


 


“Indebtedness” means and includes all Obligations that
constitute “Indebtedness” within the meaning of the Revolving Credit Agreement
or the Parity Lien Documents or the Priority Lien Documents, as applicable.


 


“Insolvency or Liquidation Proceeding” means:


 


(1)                                  any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to any Grantor;


 


(2)                                  any other voluntary or involuntary
insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
with respect to any Grantor or with respect to a material portion of their respective
assets;


 


(3)                                  any liquidation, dissolution, reorganization
or winding up of any Grantor whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy; or


 


(4)                                  any assignment for the benefit of creditors
or any other marshalling of assets and liabilities of any Grantor.


 


“Instruments” means all present and future “instruments”
(as defined in Article 9 of the UCC).


 


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“Intellectual Property” means, collectively, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.


 


“Intercompany Notes of Subsidiaries” means all indebtedness owing by any of the
Company’s Subsidiaries to the Company or any of the Company’s other
Subsidiaries, whether or not represented by a note or agreement.


 


“Intercreditor Agreement Joinder” means an agreement substantially in the form
of Exhibit A.


 


“Inventory” mean all present and future “inventory” (as defined in Article 9
of the UCC) including, without limitation, all goods held for sale or lease or
to be furnished under contracts of service or so leased or furnished, all raw
materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing
or production of such inventory or otherwise used or consumed in any Grantor’s
business; all goods in which any Grantor has an interest in mass or a joint or
other interest or right of any kind; and all goods which are returned to or
repossessed by any Grantor, all computer programs embedded in any goods and all
accessions thereto and products thereof (in each case, regardless of whether
characterized as inventory under the UCC).


 


“Letter of Credit” means any present and future “letter of
credit” (as defined in Article 5 of the UCC).


 


“Lien” means any lien, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof) and any option, trust, UCC
financing statement or other preferential arrangement having the practical
effect of any of the foregoing.


 


“Lien Sharing and Priority Confirmation” means:


 


(1)                                  as to any Series of Parity Lien Debt, the
written agreement of the holders of such Series of Parity Lien Debt, as set
forth in the indentures, credit agreement or other agreement governing such
Series of Parity Lien Debt, for the enforceable benefit of all holders of each
existing and future Series of Priority Lien Debt and Parity Lien Debt, each
existing and future Priority Lien Representative and Parity Lien Representative
and each existing and future holder of “Permitted Liens” (as defined in the Senior
Secured Notes Indentures):


 


(a)                                  that all Parity Lien Obligations will be and
are secured Equally and Ratably by all Parity Liens at any time granted by the
Company or any other Guarantor to secure any Obligations in respect of such
Series of Parity Lien Debt, whether or not upon property otherwise constituting
collateral for such Series of Parity Lien Debt, and that all such Parity Liens
will be enforceable by the Collateral Trustee for the benefit of all holders of
Parity Lien Obligations Equally and Ratably; provided that holders of
any future Parity Lien Debt that constitutes a “security” for purposes of the
Securities Act of 1933 will not be entitled to be secured by any Separate
Collateral;


 


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(b)                                 that the holders of Obligations in respect of
such Series of Parity Lien Debt are bound by the provisions of this Agreement
and the Collateral Trust Agreement, including the provisions relating to the
ranking of Parity Liens and the order of application of proceeds from the
enforcement of Parity Liens;


 


(c)                                  consenting to and directing the Collateral
Trustee to perform its obligations under the Collateral Trust Agreement and the
other Security Documents; and


 


(d)                                 consenting to the terms of this Agreement;
and


 


(2)                                  as to any Series of Priority Lien Debt, the
written agreement of the holders of such Series of Priority Lien Debt, as set forth
in the credit agreement, indenture or other agreement governing such Series of
Priority Lien Debt, for the enforceable benefit of all holders of each existing
and future Series of Parity Lien Debt, each existing and future Parity Lien
Representative and each existing and future holder of “Permitted Liens” (as
defined in the Senior Secured Notes Indentures):


 


(a)                                  that all Priority Lien Obligations will be
and are secured Equally and Ratably by all Priority Liens at any time granted
by the Company or any other Grantor to secure any Obligations in respect of
such Series of Priority Lien Debt, whether or not upon property otherwise
constituting collateral for such Series of Priority Lien Debt, and that all
such Priority Liens will be enforceable by the Collateral Trustee for the benefit
of all holders of Priority Lien Obligations Equally and Ratably; provided
that the holders of any future Priority Lien Debt that constitutes a “security”
for purposes of the Security Act of 1933, as amended, will be entitled to be
secured by any Separate Collateral;


 


(b)                                 that the holders of Obligations in respect of
such Series of Priority Lien Debt are bound by the provisions of this Agreement
and the Collateral Trust Agreement, including the provisions relating to the
ranking of Priority Liens and the order of application of proceeds from
enforcement of Priority Liens;


 


(c)                                  consenting to and directing the Collateral
Trustee to perform its obligations under the Collateral Trust Agreement and the
other Security Documents; and


 


(d)                                 consenting to the terms of this Agreement.


 


“Mortgaged Premises” means any real property which shall now or
hereafter be subject to a Parity Lien Mortgage or Priority Lien Mortgage, as
applicable.


 


“New Agent” has
the meaning assigned to that term in Section 5.5.


 


“New Debt Notice” has
the meaning assigned to that term in Section 5.5.


 


“Note Claimholders” means, at any relevant time, the holders of the Note Obligations,
including the Noteholders and the Trustees.


 


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“Noteholder” means, at any relevant time, a Person in whose name a Note is registered.


 


“Note Obligations” means
all Obligations with respect to Notes outstanding under the Senior Secured Note
Indentures and the other applicable Security Documents. “Note Obligations”
shall include all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) after
commencement of an Insolvency or Liquidation Proceeding in accordance with the
rate specified in the relevant Senior Secured Note Indenture whether or not the
claim for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding.


 


“Notes” has
the meaning assigned to that term in the recitals to this Agreement.


 


“Obligations” means all obligations of every nature of each
Grantor from time to time owed to any agent or trustee, the Revolving Credit
Claimholders, the Secured Debt Claimholders or any of them or their respective
Affiliates, in each case under the Revolving Credit Loan Documents or the
Secured Debt Documents, whether for principal, interest or payments for early
termination of Hedge Agreements, fees, expenses, indemnification or otherwise
and all guarantees of any of the foregoing.


 


“Parity Lien” means a Lien granted by a security document
to the Collateral Trustee, at any time, upon any property of the Company or any
other Guarantor to secure Parity Lien Obligations.


 


“Parity Lien Claimholder” means the holders of any Parity Lien
Obligation at that time, including the Parity Lien Representatives.


 


“Parity Lien Debt” means:


 


(1)                                  the Notes issued and the related guarantees
by the Guarantors incurred on the date of the Senior Secured Note Indentures
(including any related exchange notes); and


 


(2)                                  any other Indebtedness of the Company
(including additional notes), which may be guaranteed by the Guarantors, that
is secured Equally and Ratably with the Notes by a Parity Lien that was
permitted to be incurred and so secured under each applicable Secured Debt
Document; provided that:


 


(a)                                  the net proceeds are used to refund,
refinance, replace, defease, discharge or otherwise acquire or retire Priority
Lien Debt or other Parity Lien Debt; or


 


(b)                                 on the date of incurrence of such
Indebtedness, after giving pro forma effect to the incurrence thereof and the
application of the proceeds therefrom, the Secured Leverage Ratio would not be
greater than 4.0 to 1.0;


 


provided, further,
in the case of any Indebtedness referred to in clause (3) of this definition:


 


(a)                                  on or before the date on which such
Indebtedness is incurred by the Company, such Indebtedness is designated by the
Company, in an officers’ certificate


 


12





















 


delivered to each Parity Lien Representative and the Collateral Trustee,
as “Parity Lien Debt” for the purposes of the Senior Secured Note Indentures
and the Collateral Trust Agreement; provided that no Series of Secured
Debt may be designated as both Parity Lien Debt and Priority Lien Debt;


 


(b)                                 such Indebtedness is governed by an
indenture, credit agreement or other agreement that includes a Lien Sharing and
Priority Confirmation; and


 


(c)                                  all requirements set forth in the Collateral
Trust Agreement as to the confirmation, grant or perfection of the Collateral
Trustee’s Liens to secure such Indebtedness or Obligations in respect thereof
are satisfied (and the satisfaction of such requirements and the other
provisions of this clause (c) will be conclusively established if the Company
delivers to the Collateral Trustee an officers’ certificate stating that such requirements
and other provisions have been satisfied and that such Indebtedness is “Parity
Lien Debt”).


 


“Parity Lien Default” means an “Event of Default” (as defined in
any of the Parity Lien Documents), which is no longer subject to any applicable
cure or notice period.


 


“Parity Lien Documents” means, collectively, the Senior Secured Note Indentures
and the indenture, credit agreement or other agreement governing each other
Series of Parity Lien Debt and the related Security Documents (other than any
Security Documents that do not secure Parity Lien Obligations).


 


“Parity Lien Mortgages” means a collective reference to each
mortgage, deed of trust and other document or instrument under which any Lien
on real property owned or leased by any Grantor is granted to secure any Parity
Lien Obligations or (except for this Agreement and the Collateral Trust
Agreement) under which rights or remedies with respect to any such Liens are
governed.


 


“Parity Lien Obligations” means
Parity Lien Debt and all other Obligations in respect thereof (including,
without limitation, all Note Obligations).


 


“Parity Lien Representative” means:


 


(1)                                  in the case of each Series of the Notes, the
applicable Trustee; or


 


(2)                                  in the case of any other Series of Parity
Debt, the trustee, agent or representative of the holders of such Series of
Parity Lien Debt who maintains the transfer register for such Series of Parity
Lien Debt and (a) is appointed as a Parity Lien Representative (for purposes
related to the administration of the Security Documents) pursuant to an
indenture, credit agreement or other agreement governing such Series of Parity
Lien Debt, together with its successors in such capacity, and (b) has become a
party to the Collateral Trust Agreement by executing a joinder in the form
required under the Collateral Trust Agreement.


 


“Patent Licenses” means all
present and future agreements providing for the granting of any right in or to
Patents (whether such Grantor is licensee or licensor thereunder).


 


13





















 


“Patents” shall mean all United States and foreign patents and certificates of
invention, or similar industrial property rights, and applications for any of
the foregoing, including, but not limited to: (i) each patent and patent
application referred to from time to time on schedules to Revolving Credit
Collateral Documents, or Security Agreements relating to the Parity Lien
Obligations or Priority Lien Obligations, (ii) all reissues, divisions,
continuations, continuations-in-part, extensions, renewals, and reexaminations
thereof, (iii) all rights corresponding thereto throughout the world, (iv) all
inventions and improvements described therein, and (v) all rights to sue for
past, present and future infringements thereof.


 


“Person” means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, governmental authority
or other entity.


 


“Pledged Collateral” has the meaning set forth in Section 5.4(a).


 


“Priority Lien” means a Lien granted by a security document
to the Collateral Trustee, at any time, upon any property of the Company or any
other Guarantor to secure Priority Lien Obligations.


 


“Priority Lien Claimholder” means, at any relevant time, the holders of
any Priority Lien Obligations at that time, including the Priority Lien
Representatives.


 


“Priority Lien Debt” means:


 


(1)                                  Indebtedness of the Company (which may be
guaranteed by the Guarantors) under the First Lien Term Loan Agreement that was
permitted to be incurred and secured under each applicable Secured Debt
Document (or as to which the lenders under such Credit Agreement obtained an
officers’ certificate at the time of incurrence to the effect that such Indebtedness
was permitted to be incurred and secured by all applicable Secured Debt Documents);


 


(2)                                  any other Indebtedness of the Company (which
may be guaranteed by the Guarantors) that is secured by a Priority Lien that
was permitted to be incurred and so secured under each applicable Secured Debt
Document; provided, in the case of any Indebtedness referred to in this
clause (2), that:


 


(a)                                  on or before the date on which such
Indebtedness is incurred, such Indebtedness is designated by the Company, in an
officers’ certificate delivered to each Secured Debt Representative and the
Collateral Trustee, as “Priority Lien Debt” for the purposes of the Secured
Debt Documents; provided that no Series of Secured Debt may be
designated as both Parity Lien Debt and Priority Lien Debt;


 


(b)                                 such Indebtedness is governed by an
indenture, credit agreement or other agreement that includes a Lien Sharing and
Priority Confirmation; and


 


(c)                                  all requirements set forth in the Collateral
Trust Agreement as to the confirmation, grant or perfection of the Collateral
Trustee’s Lien to secure such Indebtedness or Obligations in respect thereof
are satisfied (and the satisfaction of such requirements and the other
provisions of this clause (c) will be conclusively established if


 


14





















 


the Company delivers to the Collateral Trustee an officers’ certificate
stating that such requirements and other provisions have been satisfied and
that such Indebtedness is “Priority Lien Debt”); and


 


(3)                                  Hedging Obligations of the Company (which may
be guaranteed by the Guarantors) incurred to hedge or manage interest rate risk
with respect to Priority Lien Debt or Parity Lien Debt, or to protect the
Company against fluctuations in currency exchange risks or commodity prices; provided
that:


 


(a)                                  such Hedging Obligations are secured by a
Priority Lien on all of the assets and properties that secure the Priority Lien
Debt in respect of which such Hedging Obligations are incurred; and


 


(b)                                 such Priority Lien is senior to or on a parity
with the Priority Liens securing the Priority Lien Debt in respect of which
such Hedging Obligations are incurred.


 


“Priority Lien Default” means an “Event of Default” (as defined in
any of the Priority Lien Documents), which is no longer subject to any
applicable cure or notice period.


 


“Priority Lien Documents” means the First Lien Term Loan Documents and
any other indenture, credit agreement or other agreement pursuant to which any
Priority Lien Debt is incurred and the related Security Documents (other than
any Security Documents that do not secure Priority Lien Obligations).


 


“Priority Lien Mortgages” means a collective reference to each First
Lien Term Loan Mortgage and each other mortgage, deed of trust and other
document or instrument under which any Lien on real property owned or leased by
any Grantor is granted to secure any Priority Lien Obligations or (except for
this Agreement and the Collateral Trust Agreement) under which rights or
remedies with respect to any such Liens are governed.


 


“Priority Lien Obligations” means the Priority Lien Debt and all other Obligations
in respect of Priority Lien Debt.


 


“Priority Lien Representative” means (1) the First Lien Term Loan Agent or
(2) in the case of any other Series of Priority Lien Debt, the trustee, agent
or representative of the holders of such Series of Priority Lien Debt who
maintains the transfer register for such Series of Priority Lien Debt and is
appointed as a representative of the Priority Lien Debt (for purposes related
to the administration of the Security Documents) pursuant to the credit
agreement or other agreement governing such Series of Priority Lien Debt.


 


“Priority Lien Standstill Period” has the meaning set forth in Section 3.1(a)(1).


 


“Real Estate Asset” means, at any time of determination, any
interest (fee, leasehold or otherwise) then owned by the Company or any Grantor
in any real property.


 


“Records” means all present and future “records” (as defined in Article 9 of
the UCC).


 


15





















 


“Recovery” has the meaning set forth in Section 6.4.


 


“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew,
defease, amend, modify, supplement, restructure, replace, refund or repay, or
to issue other indebtedness, in exchange or replacement for, such Indebtedness
in whole or in part. “Refinanced” and “Refinancing”
shall have correlative meanings.


 


“Revolving Commitments” means the “Revolving Commitments,” (as such
term is defined in the Revolving Credit Agreement).


 


“Revolving Credit Agent” has the meaning assigned to that term in the
preamble to this Agreement.


 


“Revolving Credit Agreement” has the meaning assigned to that term in the
recitals to this Agreement.


 


“Revolving Credit Claimholders” means, at any relevant time, the holders of
Revolving Credit Obligations at that time, including the Revolving Credit
Lenders and the agents under the Revolving Credit Loan Documents.


 


“Revolving Credit Collateral” means all now owned or hereafter acquired:
(a) Accounts, other than “payment intangibles” (as defined in Article 9 of
the UCC) which constitute identifiable proceeds of Shared Collateral, (b) all
Inventory or documents of title for any Inventory; (c) Deposit Accounts,
Securities Accounts (including all cash, marketable securities and other funds
held in or on deposit in either of the foregoing) Instruments (including
Intercompany Notes of Subsidiaries) and Chattel Paper; provided, however,
that to the extent that Instruments or Chattel Paper constitute identifiable
proceeds of Shared Collateral or Separate Collateral or other identifiable
proceeds of Shared Collateral or Separate Collateral are deposited or held in
any such Bank Accounts or Securities Accounts after an Enforcement Notice, then
(as provided in Section 3.5 below) such Instruments, Chattel Paper or
other identifiable proceeds shall be treated as Shared Collateral or Separate
Collateral, as the case may be; (d) Revolving Credit General Intangibles; (e)
Records, “supporting obligations” (as defined in Article 9 of the UCC) and
related Letters of Credit, commercial tort claims or other claims and causes of
action, in each case, to the extent related primarily to any of the foregoing;
and (f) substitutions, replacements, accessions, products and proceeds
(including, without limitation, insurance proceeds, licenses, royalties,
income, payments, claims, damages and proceeds of suit) of any or all of the
foregoing.


 


“Revolving Credit Collateral Documents” means the “Collateral Documents” (as defined
in the Revolving Credit Agreement) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Revolving Credit
Obligations or under which rights or remedies with respect to such Liens are
governed.


 


“Revolving Credit Default” means an “Event of Default” (as defined in
the Revolving Credit Agreement).


 


“Revolving Credit General Intangibles” means all General Intangibles pertaining to
the other items of property included within clauses (a), (b), (c), (e), and (f)
of the


 


16





















 


definition of Revolving Credit Collateral,
including, without limitation, all contingent rights with respect to warranties
on Inventory or Accounts which are not yet “payment intangibles” (as defined in
Article 9 of the UCC).


 


“Revolving Credit Lenders” has the meaning assigned to that term in the
recitals to this Agreement.


 


“Revolving Credit Loan Documents” means the Revolving Credit Agreement, the
Revolving Credit Collateral Documents and the other Credit Documents (as defined
in the Revolving Credit Agreement) and each of the other agreements, documents
and instruments providing for or evidencing any other Revolving Credit
Obligation, and any other document or instrument executed or delivered at any
time in connection with any Revolving Credit Obligations, including any
intercreditor or joinder agreement among holders of Revolving Credit
Obligations, to the extent such are effective at the relevant time, as each may
be amended, supplemented, refunded, deferred, restructured, replaced or
refinanced from time to time in whole or in part (whether with the Revolving
Credit Agent and Revolving Credit Lenders or other agents and lenders or
otherwise), in each case in accordance with the provisions of this Agreement.


 


“Revolving Credit Obligations” means all Obligations outstanding under the
Revolving Credit Agreement and the other Revolving Credit Loan Documents.
“Revolving Credit Obligations” shall include all interest accrued or accruing
(or which would, absent commencement of an Insolvency or Liquidation
Proceeding, accrue) after commencement of an Insolvency or Liquidation
Proceeding in accordance with the rate specified in the relevant Revolving
Credit Loan Document whether or not the claim for such interest is allowed as a
claim in such Insolvency or Liquidation Proceeding.


 


“Revolving Credit Standstill Period” has the meaning set forth in Section 3.2(a)(1).


 


“Secured Debt” means, collectively, all Parity Lien Debt and
Priority Lien Debt.


 


“Secured Debt Claimholders” means, collectively, all Parity Lien
Claimholders and Priority Lien Claimholders.


 


“Secured Debt Default” means a Parity Lien Default or a Priority
Lien Default.


 


“Secured Debt Collateral Documents” means the “Collateral Documents” as
respectively defined in the First Lien Term Loan Agreement and any other
agreement, document or instrument pursuant to which a Lien is granted securing
any Secured Debt Obligations or under which rights or remedies with respect to
such Liens are governed.


 


“Secured Debt Documents” means the Collateral Trust Agreement, the
Parity Lien Documents and the Priority Lien Documents.


 


“Secured Debt Obligations” means, collectively, all Parity Lien
Obligations and Priority Lien Obligations.


 


17





















 


“Secured Debt Representative” means each Parity Lien Representative and
each Priority Lien Representative.


 


“Secured Leverage Ratio” means the “Secured Leverage Ratio” as defined
in the Senior Secured Note Indentures.


 


“Securities Accounts” means all
present and future “securities accounts” (as defined in Article 8 of the
UCC), including all monies, “uncertificated securities,” and “securities
entitlements” (as defined in Article 8 of the UCC) contained therein.


 


“Security Documents” means this Agreement, the Collateral Trust
Agreement, each Lien Sharing and Priority Confirmation, and all security
agreements, pledge agreements, collateral assignments, mortgages, deeds of
trust, collateral agency agreements, control agreements or other grants or
transfers for security executed and delivered by the Company or any other
Grantor creating (or purporting to create) a Lien upon Collateral in favor of
the Collateral Trustee, as each may be amended, supplemented, refunded,
deferred, restructured, replaced or refinanced from time to time in whole or in
part (whether with the First Lien Term Loan Agent, First Lien Term Loan
Lenders, the Trustees and Noteholders existing on the date of this Agreement or
other agents, lenders, trustees and Noteholders or otherwise), in each case in
accordance with the provisions of this Agreement.


 


“Senior Secured Note Indentures” means,
collectively, the    % Senior Secured Notes Indenture and the
Floating Rate Notes Indenture.


 


“Separate Collateral” means Stock of Subsidiaries and Intercompany
Notes of Subsidiaries unless, at the relevant time of consideration, such
Intercompany Notes of Subsidiaries secure Revolving Credit Obligations.


 


“Series of Parity Lien Debt” means, severally, the Notes and each other issue or series of Parity
Lien Debt for which a single transfer register is maintained.


 


“Series of Priority Lien Debt” means, severally, the Indebtedness outstanding under the First Lien
Term Loan Agreement and any other credit facility that constitutes Priority
Lien Debt.


 


“Series of Secured
Debt” means each Series of Parity Lien Debt and
each Series of Priority Lien Debt.


 


“Shared Collateral” means all
now owned or hereafter acquired Collateral other than the Revolving Credit
Collateral, including, without limitation all: (a) Equipment; (b) Real Estate
Assets; (c) Intellectual Property; (d) Shared Lien General Intangibles; (e)
documents of title related to Equipment; (f) Records, “supporting obligations”
(as defined in Article 9 of the UCC) and related Letters of Credit,
commercial tort claims or other claims and causes of action, in each case, to the extent related primarily to the
foregoing; and (g) substitutions, replacements, accessions, products and
proceeds (including, without limitation, insurance proceeds, licenses,
royalties, income, payments, claims, damages and proceeds of suit) of any or
all of the foregoing.


 


18





















 


“Shared Lien General Intangibles” means all General Intangibles which are not
Revolving Credit General Intangibles.


 


“Stock of Subsidiaries” means all Capital Stock of, and Equity
Interests in, Subsidiaries of the Company.


 


“Subsidiary” means, with respect to any specified Person:


 


(1)                                  any corporation, 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’ agreement that
effectively transfers voting power) to vote in the election of directors,
managers, 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); provided, however,
that notwithstanding the foregoing, Rumford Cogeneration Company Limited
Partnership, a Maine limited partnership, shall not constitute a Subsidiary of
the Borrower, unless and until the Borrower directly or indirectly acquires all
of the limited partner interests therein.


 


“Subsidiary Guarantors” has the meaning assigned to that term in the
preamble of this Agreement.


 


“Subsidiary Stock” means all
present and future equity securities of Subsidiaries of Holdings.


 


“Trademark Licenses” means any and all present and future
agreements providing for the granting of any right in or to Trademarks (whether
such Grantor is licensee or licensor thereunder).


 


“Trademarks” means all present and future United States, and foreign trademarks,
trade names, corporate names, company names, business names, fictitious
business names, Internet domain names, service marks, certification marks,
collective marks, logos, other source or business identifiers, designs and
general intangibles of a like nature, all registrations and applications for
any of the foregoing including, but not limited to: (i) all extensions or
renewals of any of the foregoing, (ii) all of the goodwill of the business
connected with the use of and symbolized by the foregoing, and (iii) the right
to sue for past, present and future infringement or dilution of any of the
foregoing or for any injury to goodwill.


 


“Trade Secret Licenses” means any and all present and future
agreements providing for the granting of any right in or to Trade Secrets (whether
such Grantor is licensee or licensor thereunder).


 


19





















 


“Trade Secrets” means all present and future trade secrets
and other confidential or proprietary information and know-how, regardless of
whether such Trade Secret has been reduced to a writing or other tangible form,
including all documents and things embodying, incorporating, or referring in
any way to such Trade Secret, including but not limited to the right to sue for
past, present and future misappropriation or other violation of any Trade
Secret.


 


“Trustees” has the meaning assigned to that term in the recitals to this
Agreement.


 


“UCC” means the Uniform Commercial Code as in effect from time to time in the
State of New York or when the context implies, the Uniform Commercial Code as in
effect from time to time in any other applicable jurisdiction.


 


“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.


 


1.2                                 Terms Generally. The definitions of terms in this Agreement
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise:


 


(a)                                  any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
restated, supplemented, modified, renewed or extended;


 


(b)                                 any reference herein to any Person shall be
construed to include such Person’s permitted successors and assigns;


 


(c)                                  the words “herein,” “hereof” and “hereunder,”
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof;


 


(d)                                 all references herein to Sections shall be
construed to refer to Sections of this Agreement;


 


(e)                                  all references to terms defined in the New
York UCC shall have the meaning ascribed to them therein (unless otherwise
specifically defined herein); and


 


(f)                                    the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


Whenever any term used in this Agreement is defined or otherwise
incorporated by reference to the Senior Secured Note Indentures, such reference
shall be deemed to have the


 


20





















 


same effect as if the definition of such term had been independently
set forth herein in full, and such term shall continue to have the meaning
established pursuant to the Senior Secured Note Indentures (subject to the
immediately preceding sentence of this subsection) notwithstanding the
termination of the Senior Secured Note Indentures or redemption of all Secured
Debt Obligations evidenced thereby.


 


II.                                     LIEN PRIORITIES.


 


2.1                                 Relative Priorities. Notwithstanding the date, time, method,
manner or order of grant, attachment or perfection of any Liens securing the
Secured Debt Obligations granted on the Collateral or of any Liens securing the
Revolving Credit Obligations granted on the Collateral and notwithstanding any
provision of any UCC, or any other applicable law or the Revolving Credit Loan
Documents or the Secured Debt Documents or any defect or deficiencies in, or
failure to perfect, the Liens securing the Revolving Credit Obligations or
Secured Debt Obligations or any other circumstance whatsoever, the Revolving
Credit Agent, on behalf of itself and/or the Revolving Credit Claimholders, the
Collateral Trustee and each Secured Debt Representative, for itself on behalf
of the respective Secured Debt Claimholders hereby each agrees that:


 


(a)                                  any Lien of the Revolving Credit Agent on the
Revolving Credit Collateral, whether now or hereafter held by or on behalf of
the Revolving Credit Agent or any Revolving Credit Claimholder or any agent or
trustee therefore, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all
respects and prior to any Lien on the Revolving Credit Collateral securing any
Secured Debt Obligations; and


 


(b)                                 any Lien of the Collateral Trustee or any
Secured Debt Representative on the Shared Collateral or the Separate
Collateral, whether now or hereafter held by or on behalf of the Collateral
Trustee or any Secured Debt Representative, any Secured Debt Claimholder or any
agent or trustee therefore regardless of how acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise, shall be
senior in all respects to any Liens on the Shared Collateral or Separate
Collateral which may secure any Revolving Credit Obligations.


 


2.2                                 Prohibition on Contesting Liens. The Revolving Credit Agent, Revolving
Credit Claimholders, the Collateral Trustee, each Secured Debt Representative
and the Secured Debt Claimholders, each agrees that it will not (and hereby
waives any right to) contest or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the
perfection, priority, validity or enforceability of a Lien held by or on behalf
of any of the Revolving Credit Claimholders or any of the Secured Debt
Claimholders in all or any part of the Collateral, or the provisions of this
Agreement; provided that nothing in this Agreement shall be construed to
prevent or impair the rights of the either the Revolving Credit Agent or any
Revolving Credit Claimholder, the Collateral Trustee, or the Secured Debt
Representatives or any Secured Debt Claimholder to enforce this Agreement,
including the provisions of this Agreement relating to the priority of the
Liens securing the Obligations as provided in Sections 2.1, 3.1 and 3.2.


 


21





















 


2.3                                 No New Liens. So long as the Discharge of Revolving
Credit Obligations and the Discharge of Secured Debt Obligations have not
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Company or any other Grantor, the Revolving Credit
Agent, Revolving Credit Claimholders, the Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders, each agree that the Company
shall not, and shall not permit any other Grantor to:


 


(a)                                  grant or permit any additional Liens on any
asset or property to secure any Priority Lien Obligation unless it has granted
or concurrently grants a Lien on such asset or property to secure all of the
Priority Lien Obligations;


 


(b)                                 grant or permit any additional Liens on any
asset or property to secure any Parity Lien Obligations, unless it has granted
or concurrently grants a Lien on such asset or property to secure all of the
Secured Debt Obligations (except, with respect to Parity Lien Obligations, Separate Collateral); or


 


(c)                                  grant or permit any additional Liens on any
asset or property to secure any Revolving Credit Obligations unless it has
granted or concurrently grants a Lien on such asset or property to secure the
Priority Lien Obligations.


 


To
the extent any additional Liens are granted on any asset or property pursuant
to this Section 2.3, the priority of such additional Liens shall be
determined in accordance with Section 2.1 (and with respect to priorities
among the Parity Liens and Priority Liens, also the terms of the Collateral
Trust Agreement). In addition, to the extent that the foregoing provisions are
not complied with for any reason, without limiting any other rights and
remedies available hereunder, the Revolving Credit Agent, the Collateral
Trustee and each Secured Debt Representative, agree that any amounts received
by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.3 shall be subject to Section 4.2.


 


III.                                 ENFORCEMENT.


 


3.1                                 Exercise of Remedies – Restrictions on
Collateral Trustee, and Secured Debt Representatives and Secured Debt
Claimholders.


 


(a)                                  Until the Discharge of Revolving Credit
Obligations has occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
the Collateral Trustee and each Secured Debt Representative and Secured Debt
Claimholder:


 


(1)                                  will not exercise or seek to exercise any
rights or remedies with respect to any Revolving Credit Collateral (including
the exercise of any right of setoff or any right under any Account Agreement,
landlord waiver or bailee’s letter or similar agreement or arrangement to which
the Collateral Agent, any Secured Debt Representative or any Secured Debt
Claimholder is a party) or institute any action or proceeding with respect to
such rights or remedies (including any action of foreclosure); provided,
however, that the Collateral Trustee may exercise any or all such rights
or remedies after the passage of a period of at least 180 days has elapsed
since the later of: (i) the date on which a Priority Lien Representative first
declares the existence of a Priority Lien Default and demands


 


22





















 


the repayment of all the principal amount of any Priority Lien
Obligations; and (ii) the date on which the Revolving Credit Agent received
notice from the Collateral Trustee of such declarations of a Priority Lien
Default, (the “Priority Lien Standstill
Period”); provided,
further, however, that notwithstanding anything herein to the
contrary, in no event shall the Collateral Trustee, any Secured Debt
Representative or any Secured Debt Claimholder exercise any rights or remedies
with respect to the Revolving Credit Collateral if, notwithstanding the
expiration of the Priority Lien Standstill Period, the Revolving Credit Agent
or Revolving Credit Claimholders shall have commenced and be diligently
pursuing the exercise of their rights or remedies with respect to all or any
material portion of such Revolving Credit Collateral (prompt notice of such
exercise to be given to the Collateral Trustee);


 


(2)                                  will not contest, protest or object to any
foreclosure proceeding or action brought by the Revolving Credit Agent or any
Revolving Credit Claimholder or any other exercise by the Revolving Credit
Agent or any Revolving Credit Claimholder of any rights and remedies relating
to the Revolving Credit Collateral, whether under the Revolving Credit Loan
Documents or otherwise; and


 


(3)                                  subject to their rights under clause (a)(l)
above and except as may be permitted in Section 3.1(c), will not object to
the forbearance by the Revolving Credit Agent or the Revolving Credit Claimholders
from bringing or pursuing any Enforcement;


 


provided, however,
that, in the case of (1), (2) and (3) above, the Liens granted to secure the
Priority Lien Obligations shall attach to any proceeds resulting from actions
taken by the Revolving Credit Agent or any Revolving Credit Claimholder in
accordance with this Agreement after application of such proceeds to the extent
necessary to meet the requirements of a Discharge of Revolving Credit
Obligations.


 


(b)                                 Until the Discharge of Revolving Credit Obligations
has occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Company or any other Grantor, the Revolving Credit
Agent and the Revolving Credit Claimholders shall have the right to enforce
rights, exercise remedies (including set-off and the right to credit bid their
debt) and, in connection therewith (including voluntary Dispositions of
Revolving Credit Collateral by the respective Grantors after a Revolving Credit
Default) make determinations regarding the release, disposition, or
restrictions with respect to the Revolving Credit Collateral without any
consultation with or the consent of the Collateral Trustee, any Secured Debt
Representative or any Secured Debt Claimholder; provided, however,
that the Lien securing the Priority Lien Obligations shall remain on the
proceeds (other than those properly applied to the Revolving Credit
Obligations) of such Collateral released or disposed of subject to the relative
priorities described in Section 2. In exercising rights and remedies with
respect to the Revolving Credit Collateral, the Revolving Credit Agent and the
Revolving Credit Claimholders may enforce the provisions of the Revolving
Credit 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 the rights of an agent appointed by
them to sell or otherwise dispose of the Revolving Credit Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and
to exercise


 


23





















 


all the rights and remedies of a secured creditor under the UCC and of
a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.


 


(c)                                  Notwithstanding the foregoing, the Collateral
Trustee, any Secured Debt Representative and any Secured Debt Claimholder
(unless, as among the Secured Debt Claimholders, the Collateral Trust Agreement
provides to the contrary) may:


 


(1)                                  file a claim or statement of interest with
respect to the Secured Debt Obligations; provided that an Insolvency or
Liquidation Proceeding has been commenced by or against the Company or any
other Grantor;


 


(2)                                  take any action (not adverse to the priority
status of the Liens on the Revolving Credit Collateral, or the rights of the
Revolving Credit Agent or any Revolving Credit Claimholder to exercise remedies
in respect thereof) in order to create, perfect, preserve or protect its Lien
on any of the Collateral;


 


(3)                                  file any necessary responsive or defensive
pleadings in opposition to any motion, claim, adversary proceeding or other
pleading made by any Person objecting to or otherwise seeking the disallowance
of the claims of the Secured Debt Claimholders, including any claims secured by
the Revolving Credit Collateral, if any, in each case in accordance with the
terms of this Agreement;


 


(4)                                  file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors of
the Grantors arising under either any Insolvency or Liquidation Proceeding or
applicable non-bankruptcy law, in each case not inconsistent with the terms of
this Agreement;


 


(5)                                  vote on any plan of reorganization, file any
proof of claim, make other filings and make any arguments and motions that are,
in each case, in accordance with the terms of this Agreement, with respect to
the Secured Debt Obligations and the Shared Collateral or Separate Collateral;


 


(6)                                  exercise any of its rights or remedies with
respect to any of the Revolving Credit Collateral after the termination of the
Priority Lien Standstill Period to the extent permitted by Section 3.l(a)(l);
and


 


(7)                                  make a cash bid on all or any portion of the
Revolving Credit Collateral in any foreclosure proceeding or action.


 


The Collateral Trustee and each Secured Debt Representative, on behalf
of itself and/or its respective Secured Debt Claimholders, agrees that it will
not take or receive any Revolving Credit Collateral or any proceeds of such Revolving
Credit Collateral in connection with the exercise of any right or remedy
(including set-off) with respect to any such Revolving Credit Collateral in its
capacity as a creditor in violation of this Agreement.  Without limiting the generality of the
foregoing, unless and until the Discharge of Revolving Credit Obligations has
occurred, except as expressly provided in Sections 3.1(a), 6.3(c)(l) and this Section 3.1(c),
the sole right of the Collateral Trustee and any Secured Debt Representative or
Secured Debt Claimholder with respect to the Revolving Credit Collateral is to
hold a Lien (if any) on such


 


24





















 


Collateral
pursuant to the respective Secured Debt Documents for the period and to the
extent granted therein and to receive a share of the proceeds thereof, if any,
after the Discharge of Revolving Credit Obligations has occurred.


 


(d)                                 Subject to Sections 3.1(a) and (c) and Section 6.3(c)(1):


 


(1)                                  Collateral Trustee and each Secured Debt
Representative, for itself and/or on behalf of its respective Secured Debt
Claimholders, agrees that it will not take any action that would hinder any
exercise of remedies under the Revolving Credit Loan Documents or that is
otherwise prohibited hereunder, including any sale, lease, exchange, transfer
or other disposition of the Revolving Credit Collateral, whether by foreclosure
or otherwise;


 


(2)                                  Collateral Trustee and each Secured Debt
Representative, for itself and/or on behalf of its respective Secured Debt
Claimholders, hereby waives any and all rights the Collateral Trustee, such
Secured Debt Representative and the respective Secured Debt Claimholders, as
applicable, may have as a junior lien creditor or otherwise to object to the
manner in which the Revolving Credit Agent or the Revolving Credit Claimholders
seek to enforce or collect the Revolving Credit Obligations or the Liens
securing the Revolving Credit Obligations granted in any of the Revolving
Credit Loan Documents or undertaken in accordance with this Agreement,
regardless of whether any action or failure to act by or on behalf of the
Revolving Credit Agent or Revolving Credit Claimholders is adverse to the
interest of the Secured Debt Claimholders;


 


(3)                                  The Collateral Trustee and each Secured Debt
Representative hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Secured Debt Document (other than this Agreement)
shall be deemed to restrict in any way the rights and remedies of the Revolving
Credit Agent or the Revolving Credit Claimholders with respect to the
enforcement of the Liens on the Revolving Credit Collateral as set forth in
this Agreement and the Revolving Credit Loan Documents.


 


(e)                                  Except as otherwise specifically set forth in
Sections 3.1(a) and (d) and 3.5, the Collateral Trustee, the Secured Debt
Representatives and Secured Debt Claimholders may exercise rights and remedies
as unsecured creditors against the Company or any other Grantor that has
guaranteed or granted Liens to secure the Secured Debt Obligations, and the
Collateral Trustee may exercise rights and remedies with respect to the Shared
Collateral and the Separate Collateral, in each case, in accordance with the
terms of the Secured Debt Documents and applicable law; provided, however,
that in the event that the Collateral Trustee, any Secured Debt Representative
or Secured Debt Claimholder becomes a judgment Lien creditor in respect of
Revolving Credit Collateral as a result of its enforcement of its rights as an
unsecured creditor with respect to the Secured Debt Obligations, such judgment
Lien shall be subject to the terms of this Agreement for all purposes
(including in relation to the Revolving Credit Obligations) as the other Liens
securing the Secured Debt Obligations are subject to this Agreement.


 


(f)                          Nothing in this Agreement shall prohibit the
receipt by the Collateral Trustee, any Secured Debt Representative or Secured
Debt Claimholder of the required payments of interest, principal and other
amounts owed in respect of its Secured Debt


 


25





















 


Obligations, so long as such receipt is not the direct or indirect
result of the exercise by Collateral Trustee, such Secured Debt Representative
or Secured Debt Claimholder of rights or remedies as a secured creditor in
respect of the Revolving Credit Collateral (including set-off) or enforcement
in contravention of this Agreement of any Lien held by any of them. Nothing in
this Agreement impairs or otherwise adversely affects any rights or remedies the
Revolving Credit Agent or the Revolving Credit Claimholders may have against
the Grantors under the Revolving Credit Loan Documents.


 


3.2                                 Exercise of Remedies – Restrictions on
Revolving Credit Agent and Revolving Credit Claimholders.


 


(a)                                  Until the Discharge of Secured Debt
Obligations has occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
the Revolving Credit Agent and Revolving Credit Claimholders:


 


(1)                                  will not exercise or seek to exercise any
rights or remedies with respect to any Shared Collateral or Separate Collateral
(including the exercise of any right of setoff or any right under any Account
Agreements, landlord waiver or bailee’s letter or similar agreement or arrangement
to which the Revolving Credit Agent, any Revolving Credit Claimholder is a
party) or institute any action or proceeding with respect to such rights or
remedies (including any action of foreclosure); provided, however,
the Revolving Credit Agent may exercise the rights provided for in Section 3.3
(with respect to any Access Period) and may exercise any or all such rights or
remedies after the passage of a period of at least 180 days has elapsed since
the later of: (x) the date on which the Revolving Credit Agent declared the
existence of any Revolving Credit Default and demanded the repayment of all the
principal amount of any Revolving Credit Obligations; and (y) the date on which
the Collateral Trustee received notice from the Revolving Credit Agent of such
declarations of any Revolving Credit Default, (the “Revolving
Credit Standstill Period”); provided, further, however,
that notwithstanding anything herein to the contrary, in no event shall the
Revolving Credit Agent or any Revolving Credit Claimholder exercise any rights
or remedies (other than those under Section 3.3) with respect to the
Shared Collateral or Separate Collateral if, notwithstanding the expiration of
the Revolving Credit Standstill Period, the Collateral Trustee shall have commenced and be diligently pursuing the exercise of its rights or remedies with
respect to all or any material portion of such Collateral (prompt
notice of such exercise to be given to the Revolving Credit Agent);


 


(2)                                  will not contest, protest or object to any foreclosure
proceeding or action brought by the Collateral Trustee, any Secured Debt
Representative or any Secured Debt Claimholder or any other exercise by the
Collateral Trustee, any Secured Debt Representative or any Secured Claimholder
of any rights and remedies relating to the Shared Collateral or Separate
Collateral, whether under the Secured Debt Documents or otherwise; and


 


(3)                                  subject to their rights under clause (a)(1)
above and except as may be permitted in Section 3.2(c), will not object to
the forbearance by the Collateral Trustee, any Secured


 


26





















 


Debt Representative or any Secured Debt Claimholder from bringing or
pursuing any Enforcement;


 


provided, however,
that in the case of (1), (2) and (3) above, the Liens (if any) granted to
secure the Revolving Credit Obligations shall attach to any proceeds resulting
from actions taken by the Collateral Trustee, any Secured Debt Representative
and any Secured Debt Claimholder in accordance with this Agreement after
application of such proceeds to the extent necessary to meet the requirements
of a Discharge of Secured Debt Obligations.


 


(b)                                 Until the Discharge of Secured Debt
Obligations has occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
the Collateral Trustee, the Secured Debt Representatives and the Secured Debt
Claimholders shall have the right to enforce rights, exercise remedies
(including set-off and the right to credit bid their debt) and make, in
connection therewith (including voluntary Dispositions of Shared Collateral or
Separate Collateral by the respective Grantors after a Secured Debt Default)
determinations regarding the release, disposition, or restrictions with respect
to the Shared Collateral or Separate Collateral without any consultation with
or the consent of the Revolving Credit Agent or any Revolving Credit
Claimholder; provided, however, that the Lien (if any) securing
the Revolving Credit Obligations shall remain on the proceeds (other than those
properly applied to the Secured Debt Obligations) of such Collateral released
or disposed of subject to the relative priorities described in Section 2.
In exercising rights and remedies with respect to the Shared Collateral or the
Separate Collateral, the Collateral Trustee, the Secured Debt Representatives
and the Secured Debt Claimholders may enforce the provisions of the Secured
Debt 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 the rights of an agent appointed by them
to sell or otherwise dispose of the Shared Collateral and Separate Collateral
upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured creditor
under the UCC and of a secured creditor under the Bankruptcy Laws of any
applicable jurisdiction.


 


(c)                                  Notwithstanding the foregoing, the Revolving
Credit Agent and Revolving Credit Claimholders may:


 


(1)                                  file a claim or statement of interest with
respect to the Revolving Credit Obligations; provided that an Insolvency
or Liquidation Proceeding has been commenced by or against the Company or any
other Grantor;


 


(2)                                  take any action (not adverse to the priority
status of the Liens of the Collateral Trustee on the Shared Collateral and
Separate Collateral) in order to create, perfect, preserve or protect its Lien
on any of the Revolving Credit Collateral;


 


(3)                                  file any necessary responsive or defensive
pleadings in opposition to any motion, claim, adversary proceeding or other
pleading made by any Person objecting to or otherwise seeking the disallowance
of the claims of the Revolving Credit Claimholders;


 


27


















 


(4)                                  file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors of
the Grantors arising under either any Insolvency or Liquidation Proceeding or
applicable non-bankruptcy law, in each case not inconsistent with the terms of
this Agreement;


 


(5)                                  vote on any plan of reorganization, file any
proof of claim, make other filings and make any arguments and motions that are,
in each case, in accordance with the terms of this Agreement, with respect to
the Revolving Credit Obligations and the Revolving Credit Collateral;


 


(6)                                  exercise any of its rights or remedies with
respect to any of the Collateral after the termination of the Revolving Credit
Standstill Period, to the extent permitted by Section 3.2(a)(l); and


 


(7)                                  make a cash bid on all or any portion of the
Shared Collateral or Separate Collateral in any foreclosure proceeding or
action.


 


The Revolving Credit Agent, on behalf of itself and the Revolving
Credit Claimholders, agrees that it will not take or receive any Shared
Collateral or Separate Collateral or any proceeds of such Collateral in
connection with the exercise of any right or remedy (including set-off) with
respect to any such Collateral in its capacity as a creditor in violation of
this Agreement.


 


(d)                                 Subject to Sections 3.2(a) and (c) and
Sections 3.3 and 6.3(c)(2):


 


(1)                                  the Revolving Credit Agent, on behalf of
itself and the Revolving Credit Claimholders, agrees that the Revolving Credit
Agent and the Revolving Credit Claimholders will not take any action that would
hinder any exercise of remedies by the Collateral Trustee under the Secured
Debt Documents or that is otherwise prohibited hereunder, including any sale,
lease, exchange, transfer or other disposition of the Shared Collateral or
Separate Collateral, whether by foreclosure or otherwise;


 


(2)                                  the Revolving Credit Agent, on behalf of
itself and the Revolving Credit Claimholders, hereby waives any and all rights
it or the Revolving Credit Claimholders may at any time have as a junior lien
creditor or otherwise to object to the manner in which the Collateral Trustee
seeks to enforce or collect the Secured Debt Obligations or the Liens securing
the Shared Collateral and Separate Collateral granted in any of the Secured
Debt Documents or undertaken in accordance with this Agreement, regardless of
whether any action or failure to act by or on behalf of the Secured Debt
Representatives or Secured Debt Claimholders is adverse to the interest of the
Revolving Credit Claimholders; and


 


(3)                                  the Revolving Credit Agent hereby
acknowledges and agrees that no covenant, agreement or restriction contained in
the Revolving Credit Collateral Documents, or any other Revolving Credit Loan
Document (other than this Agreement), shall be deemed to restrict in any way
the rights and remedies of the Collateral Trustee, any Secured Debt
Representative or Secured Debt Claimholder with respect to the enforcement of
its Liens


 


28





















 


on the Shared Collateral or Separate Collateral as
set forth in this Agreement and the Secured Debt Documents.


 


(e)                                  Except as otherwise specifically set forth in
Sections 3.2(a) and (d) and 3.5, the Revolving Credit Agent and the Revolving
Credit Claimholders may exercise rights and remedies as unsecured creditors
against the Company or any other Grantor that has guaranteed or granted Liens
to secure the Revolving Credit Obligations and may exercise rights and remedies
with respect to the Revolving Credit Collateral, in each case, in accordance
with the terms of the Revolving Credit Loan Documents and applicable law; provided,
however, that in the event that any Revolving Credit Claimholder becomes
a judgment Lien creditor in respect of Shared Collateral or Separate Collateral
as a result of its enforcement of its rights as an unsecured creditor with
respect to the Revolving Credit Obligations, such judgment Lien shall be
subject to the terms of this Agreement for all purposes (including in relation
to the Secured Debt Obligations) as the other Liens securing the Revolving
Credit Obligations are subject to this Agreement.


 


(f)                                    Nothing in this Agreement shall prohibit the
receipt by the Revolving Credit Agent or any Revolving Credit Claimholder of
the required payments of interest, principal and other amounts owed in respect
of the Revolving Credit Obligations, so long as such receipt is not the direct or indirect result of the
exercise by the Revolving Credit Agent or any Revolving Credit Claimholder of
rights or remedies as a secured creditor in respect of the Shared Collateral or
Separate Collateral (including set-off) or enforcement in contravention of this
Agreement of any Lien held by any of them. Nothing in this Agreement impairs or
otherwise adversely affects any rights or remedies the Collateral Trustee, the
Secured Debt Representatives or the Secured Debt Claimholders may have against
the Grantors under the Secured Debt Documents.


 


3.3                                 Exercise of Remedies – Collateral Access
Rights.


 


(a)                                  The Revolving Credit Agent, Collateral
Trustee and the Secured Debt Representatives agree not to commence Enforcement
until an Enforcement Notice has been given to the Collateral Trustee or the
Revolving Credit Agent, as the case may be. Subject to the provisions of
Sections 3.1 and 3.2 above, either the Revolving Credit Agent or the Collateral
Trustee may, to the extent permitted by applicable law, join in any judicial
proceedings commenced by the other Person to enforce Liens on the Collateral,
provided that neither such Person, nor the Revolving Credit Claimholders or
Secured Debt Claimholders, as the case may be, shall interfere with the
Enforcement actions of the other with respect to Collateral in which such party
or its Secured Debt Representative has the benefit of the priority Lien in
accordance herewith.


 


(b)                                 If the Collateral Trustee or any Secured Debt
Representative or any of their respective agents or representatives, or any
third party pursuant to any Enforcement undertaken by the Collateral Trustee or
any Secured Debt Representative, as applicable, or any receiver, shall obtain
possession or physical control of any of the Mortgaged Premises, the Collateral
Trustee or such Secured Debt Representative, as applicable, shall promptly
notify the Revolving Credit Agent and each Priority Lien Representative of that
fact and the Revolving Credit Agent (or, following the Discharge of Revolving
Credit Obligations, each


 


29





















 


Priority Lien Representative) shall, within ten (10)
Business Days thereafter, notify Collateral Trustee or Secured Debt
Representative or, if applicable, any such third party (at such address to be
provided by the Collateral Trustee or such Secured Debt Representative, as
applicable, in connection with the applicable Enforcement), as to whether the
Revolving Credit Agent (or, following the Discharge of Revolving Credit
Obligations, each Priority Lien Representative) desires to exercise (or in the
case of a Priority Lien Representative, cause the Collateral Trustee to
exercise on behalf of the Priority Lien Claimholders) access rights under this
Agreement, at which time the parties shall confer in good faith to coordinate
with respect to the Revolving Credit Agent’s (or Collateral Trustee’s) exercise
of such access rights. Access rights may apply to differing parcels of
Mortgaged Premises at differing times (i.e. the Collateral Trustee may obtain
possession of one plant at a different time than it obtains possession of other
properties), in which case, a differing Access Period may apply to each such
property.


 


(c)                                  Upon delivery of notice to the Collateral
Trustee or the relevant Secured Debt Representative as provided in Section 3.3(b),
the Access Period shall commence for the subject parcel of Mortgaged Premises.
During the Access Period, Revolving Credit Agent (or, following the Discharge
of Revolving Credit Obligations, the Collateral Trustee on behalf of each
Priority Lien Claimholder) and its agents, representatives and designees shall
have a non-exclusive right to have access to, and a rent free right to use, the
Shared Collateral for the purpose of arranging for and effecting the sale or
disposition of Revolving Credit Collateral, including the production,
completion, packaging and other preparation of such Revolving Credit Collateral
for sale or disposition. During any such Access Period, Revolving Credit Agent
(or, following the Discharge of Revolving Credit Obligations, the Collateral
Trustee on behalf of each Priority Lien Claimholder) and its representatives
(and persons employed on their behalf), may continue to operate, service,
maintain, process and sell the Revolving Credit Collateral, as well as to
engage in bulk sales of Revolving Credit Collateral. Revolving Credit Agent
(or, following the Discharge of Revolving Credit Obligations, the Collateral
Trustee on behalf of each Priority Lien Claimholder) shall take proper care of
any Shared Collateral that is used by it during the Access Period and repair
and replace any damage (ordinary wear-and-tear excepted) caused by it or its agents,
representatives or designees and comply with all applicable laws in connection
with its use or occupancy of the Shared Collateral. The Revolving Credit Agent
and the Revolving Credit Claimholders (or, following the Discharge of Revolving
Obligations, each Priority Lien Representative instructing the Collateral
Trustee to act on its behalf) shall indemnify and hold harmless the Collateral
Trustee or the relevant Secured Debt Claimholders for any injury or damage to
Persons or property caused by the acts or omissions of Persons under its
control. Revolving Credit Agent, Collateral Trustee and each Secured Debt
Representative shall cooperate and use reasonable efforts to ensure that their
activities during the Access Period as described above do not interfere
materially with the activities of the other as described above, including the
right of Collateral Trustee or any Secured Debt Representative to commence
foreclosure of the Parity Lien Mortgages or Priority Lien Mortgages or to show
the Shared Collateral to prospective purchasers and to ready the Shared
Collateral for sale.


 


(d)                                 If any order or injunction is issued or stay
is granted which prohibits Revolving Credit Agent (or, following the Discharge
of Revolving Credit Obligations, the Collateral Trustee, acting pursuant to
instructions from a Priority Lien Representative) from exercising any of its
rights hereunder, then at Revolving Credit Agent’s (or, following the


 


30





















 


Discharge of Revolving Credit Obligations, the
respective Priority Lien Representative’s) option, the Access Period granted
under this Section 3.3 shall be stayed during the period of such
prohibition and shall continue thereafter for the number of days remaining as
required under this Section 3.3. If the Collateral Trustee or any Secured
Debt Representative shall foreclose or otherwise sell any of the Shared
Collateral, such Person will notify the buyer thereof of the existence of this
Agreement and that the buyer is acquiring such Collateral subject to the terms
of this Agreement.


 


(e)                                  The Grantors hereby agree with the Collateral
Trustee and the Secured Debt Representatives that Revolving Credit Agent (or,
following the Discharge of Revolving Credit Obligations, the Collateral Trustee
on behalf of the Priority Lien Claimholders) shall have access, during the
Access Period, as described herein and each such Grantor that owns any of the
Mortgaged Premises grants a non-exclusive easement in gross over its property
to permit the uses by Revolving Credit Agent (or, following the Discharge of
Revolving Credit Obligations, the Collateral Trustee on behalf of the Priority
Lien Claimholders), contemplated by this Section 3.3. The Collateral
Trustee and each Secured Debt Representative consents to such easement and to
the recordation of the Collateral Access Easement Agreement substantially in
the form attached as Exhibit B hereto
in the relevant real estate documents with respect to each parcel of Real
Estate that is to be hereafter subject to either a Priority Lien Mortgage or
Parity Lien Mortgage and agrees, upon request by Revolving Collateral Agent
(or, following the Discharge of Revolving Credit Obligations, the Collateral
Trustee on behalf of the Priority Lien Claimholders), to execute and permit the
recording of the Subordination of Mortgage/Deed of Trust, substantially in the
form attached as Exhibit C hereto.
Revolving Credit Agent and each Priority Lien Representative each agrees that
upon either a Discharge of Revolving Credit Obligations or a Discharge of
Priority Lien Obligations, as the case may be, or upon the expiration of the
final Access Period with respect to any parcel of property covered by a
Priority Lien Mortgage or Parity Lien Mortgage, it shall, upon request, execute
and deliver to the Collateral Trustee, or if a Discharge of Secured Debt
Obligations has occurred, to the respective Grantor, such documentation, in
recordable form, as may reasonably be requested to terminate any and all rights
of the Revolving Credit Agent with respect to such Access Periods.


 


3.4                                 Exercise of Remedies – Intellectual Property
Rights/Access to Information.
Collateral Trustee and each Secured Debt Representative hereby grants (to the
full extent of their respective rights and interests) the Revolving Credit
Agent (and, following the Discharge of Revolving Credit Obligations, the
Collateral Trustee, for the benefit of the Priority Lien Claimholders) and its
agents, representatives and designees (a) a royalty free, rent free license and
lease to use all of the Shared Collateral, including any computer or other data
processing Equipment and Intellectual Property, to collect all Accounts or
amounts owing under Instruments or Chattel Paper, to copy, use or preserve any
and all information relating to any of the Collateral, and to complete the
manufacture, packaging and sale of (i) work-in-process, (ii) raw materials and
(iii) complete inventory and (b) a royalty free license (which will be binding
on any successor or assignee of the Intellectual Property) to use any and all
Intellectual Property at any time to in connection with its Enforcement; provided,
however, the royalty free, rent free license and lease granted in clause
(a) with respect to Equipment shall immediately expire upon the sale, lease,
transfer or other disposition of such Equipment.


 


31





















 


3.5                                 Exercise of Remedies – Set Off and Tracing of
and Priorities in Proceeds. Collateral
Trustee and each Secured Debt Representative, for itself and/or on behalf of
the Secured Debt Claimholders, each acknowledges and agrees that, to the extent
any such Person exercises its rights of setoff against any Grantors’ Deposit
Accounts, Securities Accounts or other assets, the amount of such setoff shall
be deemed to be the Revolving Credit Collateral to be held and distributed
pursuant to Section 4.3; provided, however, that the
foregoing shall not apply to any setoff by any such Person against any Shared
Collateral to the extent applied to payment of Secured Debt. Collateral Trustee
and each Secured Debt Representative, for itself and/or on behalf of the
Secured Debt Claimholders agree that prior to an issuance of an Enforcement
Notice all funds deposited under Account Agreements and then applied to the
Revolving Credit Obligations shall be treated as Revolving Credit Collateral
and, unless the Revolving Credit Agent (or, following the Discharge of
Revolving Credit Obligations, the relevant Priority Lien Representative or the
Collateral Trustee) has actual knowledge to the contrary, any claim that
payments made to Revolving Credit Agent (or, following the Discharge of
Revolving Credit Obligations, the Priority Lien Claimholders) through the bank
accounts that are subject to Account Agreements are proceeds of or otherwise constitute
Shared Collateral, are waived. Revolving Credit Agent, Revolving Claimholders,
the Collateral Trustee, the Secured Debt Representatives and the Secured Debt
Claimholders, each agrees that, prior to an issuance of an Enforcement Notice,
any proceeds of Collateral, whether or not deposited under Account Agreements,
which are used by any Grantor to acquire other property which is Collateral
shall not (as among the Revolving Credit Agent, the Collateral Trustee, the
Secured Debt Representatives and the various Claimholders) be treated as
proceeds of Collateral for purposes of determining the relative priorities in
the Collateral which was so acquired.


 


3.6                                 Until the Discharge of Revolving Credit
Obligations has occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
the Collateral Trustee, the Secured Debt Representatives and the Secured Debt
Claimholders each agree they will not exercise or seek to exercise any rights
or remedies they may have, or hereafter acquire, under that certain Cash
Management Intercreditor Agreement dated as of the date hereof by and among
Escanaba Timber LLC, the Company, Holdings, the Revolving Credit Agent, the
Collateral Trustee and General Electric Capital Corporation.


 


IV.                                PAYMENTS.


 


4.1                                 Application of Proceeds.


 


(a)                                  So long as the Discharge of Revolving Credit
Obligations has not occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
all Revolving Credit Collateral or proceeds thereof received in connection with
the sale or other disposition of, or collection on, such Collateral upon the
exercise of remedies by the Revolving Credit Agent or Revolving Credit
Claimholders, shall be applied by the Revolving Credit Agent to the Revolving
Credit Obligations in such order as specified in the relevant Revolving Credit
Loan Documents. Upon the Discharge of Revolving Credit Obligations, the
Revolving Credit Agent shall deliver to the Collateral Trustee any Collateral
and proceeds of Collateral held by it in the same form as received, with any
necessary endorsements or as a court of competent jurisdiction may


 


32





















 


otherwise direct to be applied by the Collateral Trustee or any Secured
Debt Representative in such order as specified in the Collateral Trust
Agreement and/or the other relevant Secured Debt Documents.


 


(b)                                 So long as the Discharge of Secured Debt
Obligations has not occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against the Company or any other Grantor,
all Shared Collateral or proceeds thereof received in connection with the sale
or other disposition of, or collection on, such Collateral upon the exercise of
remedies by the Collateral Trustee or Secured Debt Claimholders, shall be
applied to the Secured Debt Obligations in such order as specified in
Collateral Trust Agreement and/or the other relevant Secured Debt Documents.


 


4.2                                 Payments Over in Violation of Agreement. Unless and until both the Discharge of
Revolving Credit Obligations and the Discharge of Secured Debt Obligations have
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Company or any other Grantor, any Collateral or
proceeds thereof (including assets or proceeds subject to Liens referred to in
the final sentence of Section 2.3) received by the Revolving Credit Agent,
any Revolving Credit Claimholder, the Collateral Trustee, any Secured Debt
Representative or any Secured Debt Claimholder in connection with the exercise
of any right or remedy (including set-off) relating to the Collateral in
contravention of this Agreement shall be segregated and held in trust and forthwith
paid over to the Revolving Credit Agent or Collateral Trustee, as appropriate
in the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. The Collateral Trustee and
Revolving Credit Agent are each hereby authorized to make any such endorsements
as agent for the other Person. This authorization is coupled with an interest
and is irrevocable until both the Discharge of Revolving Credit Obligations and
Discharge of Secured Debt Obligations have occurred.


 


4.3                                 Application of Payments. Subject to the other terms of (a) this
Agreement, all payments received by the Revolving Credit Agent or the Revolving
Credit Claimholders may be applied, reversed and reapplied, in whole or in
part, to the Revolving Credit Obligations to the extent provided for in the
Revolving Credit Loan Documents; and (b) this Agreement and the Collateral
Trust Agreement, all payments received by the Collateral Trustee, any Secured
Debt Representative or the Secured Debt Claimholders may be applied, reversed
and reapplied, in whole or in part, to the Secured Debt Obligations to the
extent provided for in the Collateral Trust Agreement and/or the other Secured
Debt Documents.


 


V.                                    OTHER AGREEMENTS.


 


5.1                                 Releases.


 


(a)                                  (i) If in connection with the exercise of the
Revolving Credit Agent’s remedies in respect of any Collateral as provided for
in Section 3.1, the Revolving Credit Agent, for itself or on behalf of any
of the Revolving Credit Claimholders, releases its Liens on any part of the
Revolving Credit Collateral, then the Liens, if any, of the Collateral Trustee,
the Secured Debt Representatives and the Secured Debt Claimholders, on the
Collateral sold or disposed of in connection with such exercise, shall be
automatically, unconditionally and


 


33





















 


simultaneously released. The Collateral Trustee, for
itself and/or on behalf of any such Persons, promptly shall execute and deliver
to the Revolving Credit Agent or such Grantor such termination statements,
releases and other documents as the Revolving Credit Agent or such Grantor may
request to effectively confirm such release.


 


(ii)                                  If in connection with the exercise by the
Collateral Trustee or any Secured Debt Representative of remedies in respect of
any Collateral as provided for in Section 3.2, the Collateral Trustee, for
itself and/or on behalf of any of the Secured Debt Representatives and Secured
Debt Claimholders, releases all of its Liens on any part of the Shared
Collateral or Separate Collateral, then the Liens, if any, of the Revolving
Credit Agent, for itself or for the benefit of the Revolving Credit
Claimholders, on the Collateral sold or disposed of in connection with such
exercise, shall be automatically, unconditionally and simultaneously released.
The Revolving Credit Agent, for itself and/or on behalf of any such Revolving
Credit Claimholder shall each promptly execute and deliver to the Collateral
Trustee or such Grantor such termination statements, releases and other
documents as the Collateral Trustee or such Grantor may request to effectively
confirm such release.


 


(b)                                 If in connection with any sale, lease,
exchange, transfer or other disposition of any Collateral (collectively, a “Disposition”) permitted under the terms of both the
Revolving Credit Loan Documents and the Secured Debt Documents (including
voluntary Dispositions of Revolving Credit Collateral by the respective
Grantors after a Revolving Credit Default and voluntary Dispositions of Shared
Collateral or Separate Collateral by the respective Grantors after a Secured
Debt Default), (i) the Revolving Credit Agent, for itself and/or on behalf of
any of the Revolving Credit Claimholders, releases its Liens on any part of the
Revolving Credit Collateral, in each case other than (A) in connection with the
Discharge of Revolving Credit Obligations or (B) after the occurrence and
during the continuance of a Secured Debt Default, then the Liens, if any, of
the Collateral Trustee and/or any Secured Debt Representative, for itself
and/or for the benefit of the Secured Debt Claimholders, on such Collateral
shall be automatically, unconditionally and simultaneously released, and (ii)
the Collateral Trustee or any Secured Debt Representative, for itself and/or on
behalf of the Secured Debt Claimholders, releases all of its Liens on any part
of the Shared Collateral or Separate Collateral, in each case other than (A) in
connection with the Discharge of Secured Debt Obligations or (B) after the
occurrence and during the continuance of a Revolving Credit Default, then the
Liens, if any, of the Revolving Credit Agent, for itself and/or for the benefit
of the Revolving Credit Claimholders, on such Collateral shall be
automatically, unconditionally and simultaneously released. The Revolving
Credit Agent, Collateral Trustee or any Secured Debt Representative, each for
itself and/or on behalf of any such Revolving Credit Claimholders or Secured
Debt Claimholder, as the case may be, promptly shall execute and deliver to the
Collateral Trustee, Revolving Credit Agent or such Grantor such termination
statements, releases and other documents as the Collateral Trustee, Revolving
Credit Agent or such Grantor may request to effectively confirm such release.


 


(c)                                  Until the Discharge of Revolving Credit
Obligations shall occur, the Collateral Trustee and each Secured Debt
Representative, for itself and/or on behalf of the Secured Debt Claimholders,
hereby irrevocably constitutes and appoints the Revolving Credit Agent and any
of its officers or agents, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the


 


34





















 


Collateral
Trustee and each Secured Debt Representative or such Secured Debt Claimholder,
whether in the Revolving Credit Agent’s name or, at the option of the Revolving
Credit Agent, in the Collateral Trustee’s, any Secured Debt Representative’s or
any Secured Debt Claimholder’s own name, from time to time in the Revolving
Credit Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of this Section 5.1,
including any endorsements or other instruments of transfer or release.


 


(d)                                 Until the Discharge of Secured Debt
Obligations shall occur, the Revolving Credit Agent, for itself and/or on
behalf of the Revolving Credit Claimholders hereby irrevocably constitutes and
appoints the Collateral Trustee and any of its officers or agents, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Revolving Credit Agent
or such Revolving Credit Claimholder, whether in the Collateral Trustee’s name
or, at the option of the Collateral Trustee, in the Revolving Credit Agent’s or
any Revolving Credit Claimholder’s own name, from time to time in Collateral
Trustee’s discretion, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of this Section 5.1,
including any endorsements or other instruments of transfer or release


 


5.2                                 Insurance.


 


(a)                                  Unless and until the Discharge of Revolving
Credit Obligations has occurred, subject to the terms of, and the rights of the
Grantors under, the Revolving Credit Loan Documents, (i) the Revolving Credit
Agent and the Revolving Credit Claimholders shall have the sole and exclusive
right to adjust settlement for any insurance policy covering the Revolving
Credit Collateral or the Liens with respect thereto in the event of any loss
thereunder or with respect thereto and to approve any award granted in any
condemnation or similar proceeding (or any deed in lieu of condemnation)
affecting such Collateral; (ii) all proceeds of any such policy and any such
award (or any payments with respect to a deed in lieu of condemnation) if in
respect to such Collateral and to the extent required by the Revolving Credit
Loan Documents shall be paid to the Revolving Credit Agent for the benefit of
the Revolving Credit Claimholders pursuant to the terms of the Revolving Credit
Loan Documents (including, without limitation, for purposes of cash
collateralization of letters of credit) and thereafter, to the extent no
Revolving Credit Obligations are outstanding, and subject to the terms of, and
the rights of the Grantors under, the Secured Debt Documents and the terms of
the Collateral Trust Agreement, to the Collateral Trustee for the benefit of
the Secured Debt Claimholders to the extent required under the Secured Debt
Documents and then, to the extent no Secured Debt Obligations which were
secured by such Collateral are outstanding, to the owner of the subject
property, such other Person as may be entitled thereto or as a court of
competent jurisdiction may otherwise direct, and (iii) if the Collateral
Trustee or any Secured Debt Representative or any Secured Debt Claimholder
shall, at any time, receive any proceeds of any such insurance policy or any
such award or payment in contravention of this Agreement, it shall segregate
and hold in trust and forthwith pay such proceeds over to the Revolving Credit
Agent in accordance with the terms of Section 4.2.


 


35





















 


(b)                                 Unless and until the Discharge of Secured
Debt Obligations has occurred, subject to the terms of, and the rights of the
Grantors under the Secured Debt Documents, (i) the Collateral Trustee shall
have the sole and exclusive right to adjust settlement for any insurance policy
covering the Shared Collateral or Separate Collateral or the Liens with respect
thereto in the event of any loss thereunder or with respect thereto and to
approve any award granted in any condemnation or similar proceeding (or any
deed in lieu of condemnation) affecting such Collateral; (ii) all proceeds of
any such policy and any such award (or any payments with respect to a deed in
lieu of condemnation) if in respect to such Collateral and to the extent
required by the Secured Debt Documents shall be paid to the Collateral Trustee
for the benefit of the Secured Debt Claimholders pursuant to the terms of the
Collateral Trust Agreement and the other Secured Debt Documents and thereafter,
to the extent no Secured Debt Obligations which were secured by such Collateral
are outstanding, and subject to the terms of, and the rights of the Grantors
under, the Revolving Credit Collateral Documents to either the Revolving Credit
Agent for the benefit of the Revolving Credit Claimholders to the extent
required under such Revolving Credit Collateral Documents and then, to the
extent no Revolving Credit Obligations which were secured by such Collateral
are outstanding, to the owner of the subject property, such other Person as may
be entitled thereto or as a court of competent jurisdiction may otherwise
direct, and (iii) if the Revolving Credit Agent, Collateral Trustee or any
Revolving Credit Claimholder shall, at any time, receive any proceeds of any
such insurance policy or any such award or payment in contravention of this
Agreement, it shall segregate and hold in trust and forthwith pay such proceeds
over to the Collateral Trustee in accordance with the terms of Section 4.2.


 


(c)                                  To effectuate the foregoing, Revolving Credit
Agent and Collateral Trustee shall each receive separate lender’s loss payable
endorsements naming themselves as loss payee and additional insured, as their
interests may appear, with respect to policies which insure Collateral
hereunder. To the extent any proceeds are received for business interruption or
for any liability or indemnification and those proceeds are not compensation
for a casualty loss with respect to the Shared Collateral, such proceeds shall
first be applied to repay the Revolving Credit Obligations and then be applied,
to the extent required by the Secured Debt Documents, to the Secured Debt
Obligations.


 


5.3                                 Amendments to Revolving Credit Loan Documents
and Secured Debt Documents; Refinancing; Legending Provisions.


 


(a)                                  The Revolving Credit Loan Documents and
Secured Debt Documents may be amended, supplemented or otherwise modified in
accordance with the terms of both the Revolving Credit Loan Documents and the
Secured Debt Documents and the Revolving Credit Obligations and Secured Debt
Obligations may be Refinanced, in each case, without notice to, or the consent
(except to the extent a consent is required to permit the Refinancing
transaction under any Revolving Credit Document or any Secured Debt Document)
of the Revolving Credit Agent, the Revolving Credit Claimholders, the
Collateral Trustee, the Secured Debt Representatives or the Secured Debt
Claimholders, as the case may be, all without affecting the Lien subordination
or other provisions of this Agreement, provided, however, that
the holders of such Refinancing debt bind themselves in an Intercreditor
Joinder Agreement or other writing, reasonably acceptable to the Collateral
Trustee and Revolving Credit Agent and addressed to the Collateral Trustee or
Revolving Credit Agent and the Revolving Credit


 


36





















 


Claimholders, as the case may be, to the terms of this Agreement and
any such amendment, supplement, modification or Refinancing shall be in
accordance with the provisions of both the Revolving Credit Loan Documents and
the Secured Debt Documents.


 


(b)                                 The Company agrees that each Revolving Credit
Collateral Document and Secured Debt Collateral Document shall include the
following language (or language to similar effect approved by both the
Collateral Trustee and the Revolving Credit Agent):


 


“Notwithstanding anything herein to the contrary, the lien and security
interest granted to the [Revolving Credit Agent, Collateral Trustee or other
Person, as applicable] pursuant to this Agreement and the exercise of any right
or remedy by the [Revolving Credit Agent, Collateral Trustee or other Person,
as applicable] hereunder are subject to the provisions of the Intercreditor
Agreement, dated as of May 2, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”),
among NewPage Corporation, NewPage Holding Corporation, JPMorgan Chase Bank,
N.A., as Revolving Credit Agent and The Bank of New York, as Collateral Trustee
and certain other persons which may be or become parties thereto or become
bound thereto from time to time. In the event of any conflict between the terms
of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.”


 


(c)                                  Revolving Credit Agent, Collateral Trustee
and each Secured Debt Representative shall each use its best efforts to notify
the other parties of any written amendment or modification to any Revolving
Credit Loan Document or any Secured Debt Document, as applicable, but the
failure to do so shall not create a cause of action against the party failing
to give such notice or create any claim or right on behalf of any third party.
In connection with amendments or modifications permitted by Section 5.3,
Revolving Credit Agent, Collateral Trustee and each Secured Debt
Representative, as applicable shall, upon request of the other party, provide
copies of all such modifications or amendments and copies of all other relevant
documentation to the other Persons.


 


5.4                                 Bailees for Perfection.


 


(a)                                  Revolving Credit Agent, Collateral Trustee
and each Secured Debt Representative, as the case may be, agree to hold that
part of the Collateral that is in its possession or control (or in the
possession or control of its agents or bailees) to the extent that possession
or control thereof is taken to perfect a Lien thereon under the UCC (such
Collateral being the “Pledged Collateral”)
as collateral agent for the Revolving Credit Claimholders and Secured Debt
Claimholders, as the case may be, and as bailee for the Revolving Credit Agent,
Collateral Trustee or Secured Debt Representative, as the case may be, (such
bailment being intended, among other things, to satisfy the requirements of
Sections 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the
purpose of perfecting the security interest granted under the Revolving Credit
Loan Documents and the Secured Debt Documents, as applicable, subject to the
terms and conditions of this Section 5.4.


 


37





















 


(b)                                 No Person shall have any obligation
whatsoever to any other Person to ensure that the Pledged Collateral is genuine
or owned by any of the Grantors or to preserve rights or benefits of any Person
except as expressly set forth in this Section 5.4. The duties or
responsibilities under this Section 5.4 shall be limited solely to holding
the Pledged Collateral as bailee in accordance with this Section 5.4 and
delivering the Pledged Collateral upon a Discharge of Revolving Credit
Obligations or Discharge of Secured Debt Obligations, as the case may be, as
provided in paragraph (d) below.


 


(c)                                  No Person acting pursuant to this Section 5.4
shall have by reason of the Revolving Credit Loan Documents, the Secured Debt
Documents, this Agreement, the Collateral Trust Agreement or any other
document, a fiduciary relationship with any other Person with respect to such
acts.


 


(d)                                 Upon the Discharge of Revolving Credit
Obligations the Revolving Credit Agent shall deliver the remaining Pledged
Collateral (if any) together with any necessary endorsements, first, to
the Collateral Trustee to the extent the Secured Debt Obligations which are
secured by such Pledged Collateral remain outstanding, and second, to
the Company (in each case, so as to allow such Person to obtain possession or
control of such Pledged Collateral). The Revolving Credit Agent further agrees
to take all other action reasonably requested by the Collateral Trustee in
connection with the Collateral Trustee obtaining a first-priority interest in
the Collateral or as a court of competent jurisdiction may otherwise direct.


 


(e)                                  Upon the Discharge of the Secured Debt
Obligations, the Collateral Trustee shall deliver the remaining Pledged
Collateral (if any) together with any necessary endorsements, first, to
the Revolving Credit Agent to the extent any Revolving Credit Obligations which
are secured by such Pledged Collateral remain outstanding, and second,
to the Company (in each case, so as to allow such Person to obtain possession
or control of such Pledged Collateral). The Collateral Trustee further agrees
to take all other action reasonably requested by the Revolving Credit Agent in
connection with the Revolving Credit Agent obtaining a first-priority interest
in the Collateral or as a court of competent jurisdiction may otherwise direct


 


(f)                                    Subject to the terms of this Agreement, (i)
so long as the Discharge of Revolving Credit Obligations has not occurred, the
Revolving Credit Agent shall be entitled to deal with the Pledged Collateral or
Collateral within its “control” in accordance with the terms of this Agreement
and other Revolving Credit Loan Documents, but only to the extent that such
Collateral constitutes Revolving Credit Collateral, as if the Liens (if any) of
the Collateral Trustee or Secured Debt Representatives did not exist and (ii)
so long as the Discharge of Secured Debt Obligations has not occurred, the
Collateral Trustee or any Secured Debt Representative shall be entitled to deal
with the Pledged Collateral or Collateral within its “control” in accordance
with the terms of this Agreement, the Collateral Trust Agreement and other
Secured Debt Documents, but only to the extent that such Collateral constitutes
Shared Collateral or Separate Collateral, as if the Liens of the Revolving
Credit Agent did not exist.


 


5.5                                 When Discharge of Revolving Credit
Obligations and Discharge of Secured Debt Obligations Deemed to Not Have
Occurred. If concurrently
with the Discharge of


 


38





















 


Revolving Credit Obligations or the Discharge of Secured Debt
Obligations, the Company enters into any Refinancing of any Revolving Credit
Obligation or Secured Debt Obligation as the case may be, which Refinancing is
permitted by the Secured Debt Loan Documents and the Revolving Credit Loan
Documents, then such Discharge of Revolving Credit Obligations or the Discharge
of Secured Debt Obligations, shall automatically be deemed not to have occurred
for all purposes of this Agreement (other than with respect to any actions
taken as a result of the occurrence of such first Discharge of Revolving Credit
Obligations or the Discharge of Secured Debt Obligations) and, from and after
the date on which the New Debt Notice (defined below) is delivered to the
Collateral Trustee or Revolving Credit Agent, as appropriate, in accordance
with the next sentence, the obligations under such Refinancing shall
automatically be treated as Revolving Credit Obligations or Secured Debt
Obligations for all purposes of this Agreement, including for purposes of the
Lien priorities and rights in respect of Collateral set forth herein, and the
Revolving Credit Agent or Collateral Trustee, as the case may be, under such
new Revolving Credit Loan Documents or Secured Debt Documents shall be the
Revolving Credit Agent or Collateral Trustee for all purposes of this
Agreement. Upon receipt of a notice (the “New Debt Notice”)
stating that the Company has entered into new Revolving Credit Loan Documents
or new Secured Debt Documents (which notice shall include a complete copy of
the relevant new documents and provide the identity of the new agent for such
facility, such agent, the “New Agent”),
the Revolving Credit Agent and the Collateral Trustee shall promptly (a) enter
into such documents and agreements (including amendments or supplements to this
Agreement) as the Company or such New Agent shall reasonably request in order
to provide to the New Agent the rights contemplated hereby, in each case
consistent in all material respects with the terms of this Agreement and (b)
deliver, to the extent contemplated by this Agreement, to the New Agent any
Pledged Collateral held by it together with any necessary endorsements (or
otherwise allow the New Agent to obtain control of such Pledged Collateral).
The New Agent shall agree in a writing addressed to the Revolving Credit Agent,
Collateral Trustee and each Secured Debt Representative, the Revolving Credit
Claimholders, and Secured Debt Claimholders, as the case may be, to be bound by
the terms of this Agreement.


 


VI.                                INSOLVENCY OR LIQUIDATION
PROCEEDINGS.


 


6.1                                 Finance and Sale Issues. Until the Discharge of Revolving Credit
Obligations has occurred, if the Company or any other Grantor shall be subject
to any Insolvency or Liquidation Proceeding and the Revolving Credit Agent
shall, acting in accordance with the Revolving Credit Agreement, agree to
permit the use of “Cash Collateral” (as such term is defined in Section 363(a)
of the Bankruptcy Code), on which a Lien has been granted to the Revolving
Credit Agent pursuant to the Revolving Credit Loan Agreements or to permit the
Company or any other Grantor to obtain financing, whether from the Revolving
Credit Claimholders or any other Person under Section 364 of the
Bankruptcy Code or any similar Bankruptcy Law (“DIP
Financing”), then the Collateral Trustee, each Secured Debt
Representative and each Secured Debt Claimholder each agrees that it will raise
no objection to such Cash Collateral use or DIP Financing so long as such Cash
Collateral use or DIP Financing meet the following requirements: (i) it is on
commercially reasonable terms, (ii) the Collateral Trustee, each Secured Debt Representative
and each Secured Debt Claimholder retain the right to object to any ancillary
agreements or arrangements regarding the Cash Collateral use or the DIP
Financing that are materially prejudicial to their interests in the Shared
Collateral, and (iii) the terms of the DIP Financing (a) do not compel the
Company to seek confirmation of a specific


 


39





















 


plan
of reorganization for which all or substantially all of the material terms are
set forth in the DIP Financing documentation or a related document and (b) do
not expressly require the liquidation of the Collateral prior to a default
under the DIP Financing documentation or Cash Collateral order. To the extent
the Liens securing the Revolving Credit Obligations are subordinated to or pari
passu with such DIP Financing which meets the requirements of clauses (i)
through (iii) above, the Collateral Trustee and each Secured Debt
Representative will subordinate any Liens in the Revolving Credit Collateral to
the Liens securing such DIP Financing (and all Obligations relating thereto)
and will not request adequate protection or any other relief in connection
therewith (except, as expressly agreed by the Revolving Credit Agent or to the
extent permitted by Section 6.3).


 


6.2                                 Relief from the Automatic Stay.


 


(a)                                  Until the Discharge of Revolving Credit
Obligations has occurred, the Collateral Trustee, each Secured Debt
Representative and each Secured Debt Claimholder, agrees that none of them
shall seek (or support any other Person seeking) relief from the automatic stay
or any other stay in any Insolvency or Liquidation Proceeding in respect of the
Revolving Credit Collateral (other than to the extent such relief is required
to exercise its rights under Section 3.3), without the prior written
consent of the Revolving Credit Agent, unless the Revolving Credit Agent has
already filed a motion (which remains pending) for adequate protection with
respect to its interest in such Revolving Credit Collateral.


 


(b)                                 Until the Discharge of Secured Debt
Obligations has occurred, the Revolving Credit Agent, on behalf of itself and
the Revolving Credit Claimholders agrees that none of them shall seek (or
support any other Person seeking) relief from the automatic stay or any other
stay in any Insolvency or Liquidation Proceeding in respect of the Shared
Collateral or the Separate Collateral (other than to the extent such relief is
required to exercise its rights under Section 3.3), without the prior
written consent of the Collateral Trustee, unless the Collateral Trustee has
already filed a motion (which remains pending) for adequate protection with
respect to its interest in the Shared Collateral or the Separate Collateral.


 


6.3                                 Adequate Protection.


 


(a)                                  The Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders, each agree that none of them
shall contest (or support any other Person contesting):


 


(1)                                  any request by the Revolving Credit Agent for
adequate protection with respect to the Revolving Credit Collateral; or


 


(2)                                  any objection by the Revolving Credit Agent
to any motion, relief, action or proceeding based on the Revolving Credit Agent
or the Revolving Credit Claimholders claiming a lack of adequate protection
with respect to the Revolving Credit Collateral.


 


(b)                                 The Revolving Credit Agent and the Revolving
Credit Claimholders, each agree that none of them shall contest (or support any
other Person contesting):


 


40





















 


(1)                                  any request by the Collateral Trustee for
adequate protection with respect to the Shared Collateral or the Separate
Collateral; or


 


(2)                                  any objection by the Collateral Trustee to
any motion, relief, action or proceeding based on the Collateral Trustee or any
Secured Debt Claimholder claiming a lack of adequate protection with respect to
the Shared Collateral or Separate Collateral.


 


(c)                                  Notwithstanding the foregoing provisions in
this Section 6.3, in any Insolvency or Liquidation Proceeding:


 


(1)                                  if the Revolving Credit Claimholders (or any
subset thereof) are granted adequate protection with respect to the Revolving
Credit Collateral in the form of additional collateral (even if such collateral
is not of a type which would otherwise have constituted Revolving Credit
Collateral) in connection with any Cash Collateral use or DIP Financing, then
the Collateral Trustee, on behalf of itself or any of the Secured Debt
Claimholders, may seek or request adequate protection with respect to its
interests in such Collateral in the form of a Lien on the same additional
collateral, which Lien will be subordinated (except to the extent that the
Collateral Trustee already had a Lien on such Collateral (in which case the
priorities established by Section 2.1 shall apply)) to the Liens securing
the Revolving Credit Obligations and such Cash Collateral use or DIP Financing
(and all Obligations relating thereto) on the same basis as the other Liens of
the Collateral Trustee on Revolving Credit Collateral; and


 


(2)                                  in the event the Collateral Trustee or any
Secured Debt Representative or any of the Secured Debt Claimholders seeks or
requests adequate protection in respect of Shared Collateral or Separate
Collateral and such adequate protection is granted in the form of additional
collateral (even if such collateral is not of a type which would otherwise have
constituted Shared Collateral or Separate Collateral), then the Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders
each agrees that the Revolving Credit Agent may also be granted a Lien on the
same additional collateral as security for the Revolving Credit Obligations and
for any Cash Collateral use or DIP Financing provided by the Revolving Credit
Claimholders, Revolving Credit Agent and each Revolving Credit Claimholder,
agrees that any Lien on such additional collateral securing the Revolving
Credit Obligations, shall be subordinated (except to the extent that the
Revolving Credit Agent already had a Lien on such Collateral (in which case the
priorities established by Section 2.1 shall apply)) to the Liens on such
collateral securing the Secured Debt Obligations, all on the same basis as the
other Liens of the Revolving Credit Agent on Shared Collateral.


 


(d)                                 Except as otherwise expressly set forth in Section 6.1
or in connection with the exercise of remedies with respect to (i) the
Revolving Credit Collateral, nothing herein shall limit the rights of the
Collateral Trustee, any Secured Debt Representative or any Secured Debt
Claimholder from seeking adequate protection with respect to their rights in
the Shared Collateral or the Separate Collateral in any Insolvency or
Liquidation Proceeding (including adequate protection in the form of a cash
payment, periodic cash payments or otherwise) or (ii) the Shared Collateral or
Separate Collateral, nothing herein shall limit the rights of the Revolving
Credit Agent or the Revolving Credit Claimholders from seeking adequate


 


41





















 


protection with respect to their rights in the Revolving Credit
Collateral in any Insolvency or Liquidation Proceeding (including adequate
protection in the form of a cash payment, periodic cash payments or otherwise).


 


6.4                                 Avoidance Issues. If any Revolving Credit Claimholder or
Secured Debt Claimholder is required in any Insolvency or Liquidation
Proceeding or otherwise to turn over or otherwise pay to the estate of the
Company or any other Grantor any amount paid in respect of Revolving Credit
Obligations or the Secured Debt Obligations, as the case may be, (a “Recovery”), then such Revolving Credit Claimholders or
Secured Debt Claimholders shall be entitled to a reinstatement of Revolving
Credit Obligations or the Secured Debt Obligations, as the case may be, with
respect to all such recovered amounts. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full
force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto
from such date of reinstatement.


 


6.5                                 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of
the reorganized debtor secured by Liens upon any property of the reorganized
debtor are distributed pursuant to a plan of reorganization or similar
dispositive restructuring plan, both on account of Revolving Credit Obligations
and on account of Secured Debt Obligations, then, to the extent the debt
obligations distributed on account of the Revolving Credit Obligations and on
account of the Secured Debt Obligations are secured by Liens upon the same
property, the provisions of this Agreement will survive the distribution of
such debt obligations pursuant to such plan and will apply with like effect to
the debt obligations so distributed, to the Liens securing such debt
obligations and the distribution of proceeds thereof.


 


6.6                                 Post-Petition Interest.


 


(a)                                  The Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders each agree that none of them
shall oppose or seek to challenge any claim by the Revolving Credit Agent or
any Revolving Credit Claimholder for allowance in any Insolvency or Liquidation
Proceeding of Revolving Credit Obligations consisting of post-petition
interest, fees or expenses to the extent of the value of the Lien securing any
Revolving Credit Claimholder’s claim, without regard to the existence of the
Lien of the Collateral Trustee on behalf of the Secured Debt Claimholders on
the Collateral.


 


(b)                                 Neither the Revolving Credit Agent, nor any
other Revolving Credit Claimholder shall oppose or seek to challenge any claim
by the Collateral Trustee, any Secured Debt Representative or any Secured Debt
Claimholder for allowance in any Insolvency or Liquidation Proceeding of
Secured Debt Obligations consisting of post-petition interest, fees or expenses
to the extent of the value of the Lien securing any Secured Debt Claimholder’s
claim, without regard to the existence of the Lien of the Revolving Credit
Agent on behalf of the Revolving Credit Claimholders on the Collateral.


 


6.7                                 Waiver - 1111(b)(2) Issues.


 


(a)                                  The Collateral Trustee, each Secured Debt
Representative and each Secured Debt Claimholder, each waives any objection or
claim it may hereafter have against any


 


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Revolving Credit Claimholder arising out of the election of any
Revolving Credit Claimholder of the application of Section 1111(b)(2) of
the Bankruptcy Code to any claims of such Revolving Credit Claimholder and
agrees that in the case of any such election it shall have no claim or right to
payment with respect to the Revolving Credit Collateral in or from such
Insolvency or Liquidation Proceeding. Any reorganization securities issued with
respect to such election shall be allocated solely to the Revolving Credit
Claimholders pursuant to Section 6.5 hereof.


 


(b)                                 The Revolving Credit Agent, for itself and/or
on behalf of the Revolving Credit Claimholders, each waives any objection or
claim it may hereafter have against any Secured Debt Claimholder arising out of
the election of any Secured Debt Claimholder of the application of Section 1111(b)(2)
of the Bankruptcy Code to any claims of such Secured Debt Claimholder and
agrees that in the case of any such election it shall have no claim or right to
payment with respect to the Shared Collateral in or from such Insolvency or
Liquidation Proceeding. Any reorganization securities issued with respect to
such election shall be allocated solely to the Secured Debt Claimholders pursuant
to Section 6.5 hereof.


 


VII.                            RELIANCE; WAIVERS; ETC.


 


7.1                                 Reliance. Other than any reliance on the terms of this Agreement, the Revolving
Credit Agent, on behalf of itself and the Revolving Credit Claimholders under
its Revolving Credit Loan Documents, acknowledges that it and such Revolving
Credit Claimholders have, independently and without reliance on the Collateral
Trustee, any Secured Debt Representative or any Secured Debt Claimholder, and
based on documents and information deemed by them appropriate, made their own
credit analysis and decision to enter into such Revolving Credit Loan Documents
and be bound by the terms of this Agreement and they will continue to make
their own credit decision in taking or not taking any action under the
Revolving Credit Loan Documents or this Agreement. The Collateral Trustee and
each Secured Debt Representative, on behalf of itself and the Secured Debt
Claimholders, acknowledges that it and the Secured Debt Claimholders have,
independently and without reliance on the Revolving Credit Agent or any
Revolving Credit Claimholder, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into
each of the Secured Debt Documents and be bound by the terms of this Agreement
and they will continue to make their own credit decision in taking or not
taking any action under the Secured Debt Documents, the Collateral Trust
Agreement or this Agreement.


 


7.2                                 No Warranties or Liability. The Revolving Credit Agent, on behalf of
itself and the Revolving Credit Claimholders under the Revolving Credit Loan
Documents, acknowledges and agrees that each of the Collateral Trustee, the
Secured Debt Representatives and the Secured Debt Claimholders have made no
express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability
of any of the Secured Debt Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon. Except as otherwise provided in
this Agreement, the Collateral Trustee, the Secured Debt Representatives and
the Secured Debt Claimholders will be entitled to manage and supervise their
respective loans and extensions of credit under the Secured Debt Documents in
accordance with law and as they may otherwise, in their sole discretion, deem
appropriate. The Collateral Trustee, the Secured Debt Representatives and the
Secured Debt Claimholders, each acknowledges and agrees that the Revolving
Credit Agent and


 


43





















 


the
Revolving Credit Claimholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Revolving Credit
Loan Documents, the ownership of any Collateral or the perfection or priority
of any Liens thereon. Except as otherwise provided herein, the Revolving Credit
Agent and the Revolving Credit Claimholders will be entitled to manage and
supervise their respective loans and extensions of credit under their
respective Revolving Credit Loan Documents in accordance with law and as they
may otherwise, in their sole discretion, deem appropriate. The Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders
shall have no duty to the Revolving Credit Agent or any of the Revolving Credit
Claimholders, and the Revolving Credit Agent and the Revolving Credit
Claimholders shall have no duty to the Collateral Trustee, the Secured Debt
Representatives or any of the Secured Debt Claimholders, to act or refrain from
acting in a manner which allows, or results in, the occurrence or continuance
of an event of default or default under any agreements with the Company or any
other Grantor (including the Revolving Credit Loan Documents and the Secured
Debt Documents), regardless of any knowledge thereof which they may have or be
charged with.


 


7.3                                 No Waiver of Lien Priorities.


 


(a)                                  No right of the Revolving Credit Agent, the
Revolving Credit Claimholders, the Collateral Trustee, the Secured Debt
Representatives or the Secured Credit Claimholders to enforce any provision of
this Agreement, the Collateral Trust Agreement, any Revolving Credit Loan
Document or any other Secured Debt Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or any other Grantor or by any act or failure to act by such Persons or by any
noncompliance by any such Person with the terms, provisions and covenants of
this Agreement, the Collateral Trust Agreement, any of the Revolving Credit
Loan Documents or any of the other Secured Debt Documents, regardless of any
knowledge thereof which such Persons, or any of them, may have or be otherwise
charged with.


 


(b)                                 Without in any way limiting the generality of
the foregoing paragraph (but subject to the rights of the Company and the other
Grantors under the Revolving Credit Loan Documents and Secured Debt Documents
and subject to the provisions of Section 5.3(a)), the Revolving Credit
Agent, the Revolving Credit Claimholders, the Collateral Trustee, the Secured
Debt Representatives and the Secured Debt Claimholders may, at any time and
from time to time in accordance with the Revolving Credit Loan Documents and
Secured Debt Documents and/or applicable law, without the consent of, or notice
to, the other Persons (as the case may be), without incurring any liabilities
to such Persons and without impairing or releasing the Lien priorities and
other benefits provided in this Agreement or the Collateral Trust Agreement
(even if any right of subrogation or other right or remedy is affected,
impaired or extinguished thereby) do any one or more of the following:


 


(1)                                  change the manner, place or terms of payment or
change or extend the time of payment of, or amend, renew, exchange, increase or
alter, the terms of any of the Obligations or any Lien or guaranty thereof or
any liability of the Company or any other Grantor, or any liability incurred
directly or indirectly in respect thereof (including any increase in or
extension of the Obligations, without any restriction as to the tenor or terms


 


44





















 


of any such increase or extension) or otherwise amend, renew, exchange,
extend, modify or supplement in any manner any Liens held by the Revolving
Credit Agent or Collateral Trustee or any rights or remedies under any of the
Revolving Credit Loan Documents or the Secured Debt Documents;


 


(2)                                  sell, exchange, release, surrender, realize
upon, enforce or otherwise deal with in any manner and in any order any part of
the Collateral (except to the extent provided in this Agreement) or any
liability of the Company or any other Grantor or any liability incurred
directly or indirectly in respect thereof;


 


(3)                                  settle or compromise any Obligation or any
other liability of the Company or any other Grantor or any security therefore
or any liability incurred directly or indirectly in respect thereof and apply
any sums by whomsoever paid and however realized to any liability in any manner
or order that is not inconsistent with the terms of this Agreement; and


 


(4)                                  exercise or delay in or refrain from
exercising any right or remedy against the Company or any security or any other
Grantor or any other Person, elect any remedy and otherwise deal freely with
the Company, any other Grantor.


 


7.4                                 Obligations Unconditional. All rights, interests, agreements and
obligations of the Revolving Credit Agent and the Revolving Credit Claimholders
and the Collateral Trustee, the Secured Debt Representatives and the Secured
Debt Claimholders, respectively, hereunder shall remain in full force and
effect irrespective of:


 


(a)                                  any lack of validity or enforceability of any
Revolving Credit Loan Documents or any Secured Debt Documents;


 


(b)                                 except as otherwise expressly set forth in
this Agreement, any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Revolving Credit Obligations or Secured
Debt 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 any Revolving Credit Loan Document or any Secured Debt
Document;


 


(c)                                  except as otherwise expressly set forth in
this Agreement, any exchange of any security interest in any Collateral or any
other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Revolving
Credit Obligations or Secured Debt Obligations or any guaranty thereof;


 


(d)                                 the commencement of any Insolvency or
Liquidation Proceeding in respect of the Company or any other Grantor; or


 


(e)                                  any other circumstances which otherwise might
constitute a defense available to, or a discharge of, the Company or any other
Grantor in respect of the Revolving Credit Agent, the Revolving Credit
Obligations, any Revolving Credit Claimholder, the Collateral Trustee, the
Secured Debt Representatives, the Secured Debt Obligations or any Secured Debt
Claimholder in respect of this Agreement.


 


45





















 


VIII.                        MISCELLANEOUS.


 


8.1                                 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any Revolving Credit Loan Document or any Secured Debt
Document, the provisions of this Agreement shall govern and control.


 


8.2                                 Effectiveness; Continuing Nature of this
Agreement; Severability.
This Agreement shall become effective when executed and delivered by the
parties hereto. This is a continuing agreement of lien subordination and the
Revolving Credit Agent, the Revolving Credit Claimholders and the Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders may
continue, at any time and without notice to any of the others, to extend credit
and other financial accommodations and lend monies to or for the benefit of the
Company or any Grantor in reliance hereon. Each such Person hereby waives any
right it may have under applicable law to revoke this Agreement or any of the
provisions of this Agreement The terms of this Agreement shall survive, and
shall continue in full force and effect, in any Insolvency or Liquidation
Proceeding. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall not invalidate 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.
All references to the Company or any other Grantor shall include the Company or
such Grantor as debtor and debtor-in-possession and any receiver or trustee for
the Company or any other Grantor (as the case may be) in any Insolvency or
Liquidation Proceeding. This Agreement shall terminate and be of no further
force and effect:


 


(a)                                  with respect to the Revolving Credit Agent,
the Revolving Credit Claimholders and the Revolving Credit Obligations, the
date of the Discharge of Revolving Credit Obligations, subject to the rights of
the Revolving Credit Agent and Revolving Credit Claimholders under Section 6.4;
and


 


(b)                                 with respect to the Collateral Trustee, the
Secured Debt Representatives, the Secured Debt Claimholders and the Secured
Debt Obligations, the date of the Discharge of Secured Debt Obligations,
subject to the rights of the Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders under Section 6.4.


 


8.3                                 Amendments; Waivers. No amendment, modification or waiver of any
of the provisions of this Agreement shall be deemed to be made unless the same
shall be in writing signed on behalf of Revolving Credit Agent and the
Collateral Trustee or their respective authorized agent and each waiver, if
any, shall be a waiver only with respect to the specific instance involved and
shall in no way impair the rights of the parties making such waiver or the
obligations of the other parties to such party in any other respect or at any
other time. Notwithstanding the foregoing, the Company shall not have any right
to consent to or approve any amendment, modification or waiver of any provision
of this Agreement except to the extent its rights are directly affected (which
includes, but is not limited to any amendment to the Grantors’ ability to cause
additional obligations to constitute Revolving Credit Obligations or Secured
Debt Obligations as the Company may designate).


 


46





















 


8.4                                 Information Concerning Financial Condition of
the Company and its Subsidiaries. The Revolving Credit Agent and the Revolving Credit Claimholders, on
the one hand, and the Collateral Trustee, the Secured Debt Representatives and
the Secured Debt Claimholders, on the other hand, shall each be responsible for
keeping themselves informed of (a) the financial condition of the Company and
its Subsidiaries and all endorsers and/or guarantors of the Revolving Credit
Obligations or the Secured Debt Obligations and (b) all other circumstances
bearing upon the risk of nonpayment of the Revolving Credit Obligations or the
Secured Debt Obligations. Neither the Revolving Credit Agent and the Revolving
Credit Claimholders, on the one hand, nor the Collateral Trustee, the Secured
Debt Representatives and the Secured Debt Claimholders, on the other hand,
shall have any duty to advise the other of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event
that either the Revolving Credit Agent or any of the Revolving Credit
Claimholders, on the one hand, or the Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders, on the other hand,
undertakes at any time or from time to time to provide any such information to
any of the others, it or they shall be under no obligation:


 


(a)                                  to make, and shall not make, any express or
implied representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided;


 


(b)                                 to provide any additional information or to
provide any such information on any subsequent occasion;


 


(c)                                  to undertake any investigation; or


 


(d)                                 to disclose any information, which pursuant
to accepted or reasonable commercial finance practices, such party wishes to
maintain confidential or is otherwise required to maintain confidential.


 


8.5                                 Subrogation.


 


(a)                                  With respect to the value of any payments or
distributions in cash, property or other assets that any of the Secured Debt
Claimholders or the Collateral Trustee or any Secured Debt Representative pays
over to the Revolving Credit Agent or the Revolving Credit Claimholders under
the terms of this Agreement, the Secured Debt Claimholders, the Collateral
Trustee and any Secured Debt Representative shall be subrogated to the rights
of the Revolving Credit Agent and the Revolving Credit Claimholders; provided,
however, that, the Collateral Trustee, any Secured Debt Representative
and the Secured Debt Claimholders, hereby each agrees not to assert or enforce
all such rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Revolving Credit Obligations has occurred. The
Company acknowledges and agrees that, to the extent permitted by applicable
law, the value of any payments or distributions in cash, property or other
assets received by the Collateral Trustee, any Secured Debt Representative or
any Secured Debt Claimholder that are paid over to the Revolving Credit Agent
or the Revolving Credit Claimholders pursuant to this Agreement shall not
reduce any of the Secured Debt Obligations.


 


47





















 


(b)                                 With respect to the value of any payments or
distributions in cash, property or other assets that any of the Revolving
Credit Claimholders or the Revolving Credit Agent pays over to the Collateral
Trustee or any Secured Debt Representative or the Secured Debt Claimholders
under the terms of this Agreement, the Revolving Credit Claimholders and the
Revolving Credit Agent shall be subrogated to the rights of the Collateral
Trustee, any Secured Debt Representative and the Secured Debt Claimholders; provided,
however, that the Revolving Credit Agent, on behalf of itself and the
Revolving Credit Claimholders, hereby agrees not to assert or enforce all such
rights of subrogation it may acquire as a result of any payment hereunder until
the Discharge of Secured Debt Obligations has occurred. The Company
acknowledges and agrees that, to the extent permitted by applicable law, the
value of any payments or distributions in cash, property or other assets
received by the Revolving Credit Agent or the Revolving Credit Claimholders
that are paid over to the Collateral Trustee, any Secured Debt Representative
or any Secured Debt Claimholder pursuant to this Agreement shall not reduce any
of the Revolving Credit Obligations.


 


8.6                                 SUBMISSION TO JURISDICTION; WAIVERS.


 


(a)                                  ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:


 


(1)                                 ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;


 


(2)                                 WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS;


 


(3)                                 AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.8; AND


 


(4)                                 AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.


 


(b)                                  EACH OF THE PARTIES HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS,


 


48





















 


BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO
RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.6(b) AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.


 


(c)                                  EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT or ANY
OTHER REVOLVING CREDIT LOAN DOCUMENT, SECURED DEBT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY
HERETO.


 


8.7                                 Notices. All notices to the Secured Debt Representatives or to the Revolving
Credit Claimholders and Secured Debt Claimholders permitted or required under
this Agreement shall also be sent to the Revolving Credit Agent and Collateral
Trustee, respectively. Unless otherwise specifically provided herein, any
notice hereunder shall be in writing and may be personally served, telexed or
sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and
signed for against receipt thereof, upon receipt of telefacsimile or telex, or
three Business Days after depositing it in the United States mail with postage
prepaid and properly addressed. For the purposes hereof, the addresses of the
parties hereto shall be as set forth below each party’s name on the signature
pages hereto, or, as to each party, at such other address as may be designated
by such party in a written notice to all of the other parties.


 


8.8                                 Further Assurances. The Revolving Credit Agent, the Collateral
Trustee, each Secured Debt Representative and each of the Claimholders, each
agrees that each of them shall take such further action and shall execute and
deliver such additional documents and instruments (in recordable form, if
requested) as the Revolving Credit Agent or Collateral Trustee may reasonably
request to effectuate the terms of and the Lien priorities contemplated by this
Agreement. Without limiting the generality of the foregoing, all such Persons
agree upon request by Revolving Credit Agent or Collateral Trustee, to cooperate
in good faith (and to direct their counsel to cooperate in good faith) from
time to time in order to determine the specific items included in the Revolving
Credit Collateral or Shared Collateral, as applicable, and the


 


49





















 


steps taken to perfect their respective Liens thereon and the identity
of the respective parties obligated under the Revolving Credit Loan Documents
and the Secured Debt Documents.


 


8.9                                 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.


 


8.10                           Binding Effect on Successors and Assigns and
on Claimholders and Secured Debt Representatives. This Agreement shall be binding upon the
Revolving Credit Agent, the Revolving Credit Claimholders, the Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders and
their respective successors and assigns. Collateral Trustee represents that it
has not agreed to any modification of the provisions in the Secured Debt
Documents authorizing it to execute this Agreement and bind the Secured Debt
Claimholders and Secured Debt Representatives and Revolving Credit Agent
represents that it has not agreed to any modification of the provisions in the
Revolving Credit Agreement authorizing it to execute this Agreement and bind
the Revolving Credit Claimholders. Notwithstanding any implication to the
contrary in any provision in any other section of the Agreement, neither
the Collateral Trustee nor the Revolving Credit Agent make any representation
regarding the validity or binding effect of the Secured Debt Documents or
Revolving Credit Loan Documents, respectively, or their authority to bind any
of the Claimholder’s through their execution of this Agreement.


 


8.11                           Specific Performance. Each of the Revolving Credit Agent and the
Collateral Trustee may demand specific performance of this Agreement. The
Revolving Credit Agent, on behalf of itself and the Revolving Credit
Claimholders under the Revolving Credit Loan Documents, and the Collateral
Trustee, on behalf of itself, the Secured Debt Representatives and the Secured
Debt Claimholders, hereby irrevocably waive any defense based on the adequacy
of a remedy at law and any other defense which might be asserted to bar the
remedy of specific performance in any action which may be brought by the
Revolving Credit Agent or the Revolving Credit Claimholders or the Collateral
Trustee, the Secured Debt Representatives or the Secured Debt Claimholders, as
the case may be.


 


8.12                           Headings. Section 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.


 


8.13                           Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Agreement or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement or such other document or instrument, as
applicable.


 


8.14                           Authorization. By its signature, each Person executing
this Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement.


 


50





















 


8.15                           No Third Party Beneficiaries. This Agreement and the rights and benefits
hereof shall inure to the benefit of each of the parties hereto and its
respective successors and assigns and shall inure to the benefit of each of the
Revolving Credit Agent, the Collateral Trustee, the Secured Debt
Representatives, the Revolving Credit Claimholders and the Secured Debt
Claimholders. Nothing in this Agreement shall impair, as between the Company
and the other Grantors and the Revolving Credit Agent and the Revolving Credit
Claimholders, or as between the Company and the other Grantors and the
Collateral Trustee, the Secured Debt Representatives and the Secured Debt
Claimholders the obligations of the Company and the other Grantors to pay
principal, interest, fees and other amounts as provided in the Revolving Credit
Loan Documents and the Secured Debt Documents, respectively.


 


8.16                           Provisions Solely to Define Relative Rights. The provisions of this Agreement are and
are intended solely for the purpose of defining the relative rights of the
Revolving Credit Agent and the Revolving Credit Claimholders on the one hand
and the Collateral Trustee, the Secured Debt Representatives and the Secured
Debt Claimholders on the other hand. None of the Company, any other Grantor or any
other creditor thereof shall have any rights hereunder and neither the Company
nor any Grantor may rely on the terms hereof. Nothing in this Agreement is
intended to or shall impair the obligations of the Company or any other
Grantor, which are absolute and unconditional, to pay the Revolving Credit
Obligations, and the Secured Debt Obligations as and when the same shall become
due and payable in accordance with their terms.


 


8.17                           Marshalling of Assets. The Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders hereby each waive any and all
rights to have the Revolving Credit Collateral, or any part thereof, marshaled
upon any foreclosure or other enforcement of Revolving Credit Agent’s or
Collateral Trustee’s Liens. Revolving Credit Agent and each Revolving Credit
Claimholder hereby waive any and all rights to have the Shared Collateral or
Separate Collateral, or any part thereof, marshaled upon any foreclosure or
other enforcement of the Collateral Trustee’s Liens


 


51





















 


IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement as of the date first written above.


 


	
   

  	
  Revolving Credit Agent

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as
  Revolving Credit Agent, and as authorized

  representative of the Revolving Credit Claimholders

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter S. Predun

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Peter
  S. Predun

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  JPMorgan
  Chase Bank, N.A.

  
	
   

  	
  IB/ABL
  Portfolio Management Group

  
	
   

  	
  270 Park Ave, 4th Floor

  
	
   

  	
  New
  York, NY 10017

  
	
   

  	
  Attention:
  Paul O’Neill

  



 


 


[INTERCREDITOR AGREEMENT]


 





















 


	
   

  	
  Collateral Trustee

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as
  Collateral Trustee and as authorized

  representative of the Secured Debt Representatives

  and Secured Debt Claimholders

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Patricia Gallagher

  	
   

  
	
   

  	
   

  	
  Name:

  	
  PATRICIA GALLAGHER

  
	
   

  	
   

  	
  Title:

  	
  VICE
  PRESIDENT

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  The
  Bank of New York

  
	
   

  	
  101
  Barclay Street, Floor 8W

  
	
   

  	
  New
  York, NY 10286

  
	
   

  	
  Attention:
  Patricia Gallagher, Vice President

  
	
   

  	
  Telecopier:
  (212) 815-5707

  
	
   

  	
  Email:
  pgallagher@bankofny.com

  
					



 


 


[INTERCREDITOR AGREEMENT]


 





















 


	
   

  	
  Notes Agent

  
	
   

  	
   

  
	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P.,

  as Notes Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William W. Archer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William
  W. Archer

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Goldman
  Sachs Credit Partners L.P.

  
	
   

  	
  85
  Broad Street

  
	
   

  	
  New
  York, New York 10004

  
	
   

  	
  Attention:
  Stephen King

  
	
   

  	
  Telecopier:
  (212) 357-0932

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Goldman
  Sachs Credit Partners L.P.

  
	
   

  	
  85
  Broad Street

  
	
   

  	
  New
  York, New York 10004

  
	
   

  	
  Attention:
  John Makrinos

  
	
   

  	
  Telecopier:
  (212) 357-4597

  
					



 


 


[INTERCREDITOR AGREEMENT]


 





















 


Acknowledged and Agreed to by:


 


Company


 


	
  NEWPAGE CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Linda M. Sheffield

  	
   

  
	
   

  	
  Name:
  Linda M. Sheffield

  
	
   

  	
  Title:
  Treasurer

  



 


Notice
Address:


NewPage
Corporation


Courthouse
Plaza N.E.


Dayton,
OH 45463


 


 


Holdings


 


	
  NEWPAGE HOLDING CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Linda M. Sheffield

  	
   

  
	
   

  	
  Name:
  Linda M. Sheffield

  
	
   

  	
  Title:
  Treasurer

  



 


Notice
Address:


NewPage
Holding Corporation


Courthouse
Plaza N.E.


Dayton,
OH 45463


 


 


[INTERCREDITOR AGREEMENT]


 





















 


Subsidiary Guarantors


 


CHILLICOTHE PAPER INC.


 


	
  WICKLIFFE PAPER COMPANY

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Linda M. Sheffield

  	
   

  
	
   

  	
  Name:
  Linda M. Sheffield

  
	
   

  	
  Title:   Treasurer

  



 


 


ESCANABA PAPER COMPANY


 


MEADWESTVACO MARYLAND, INC.


(to be named LUKE PAPER COMPANY)


 


MEADWESTVACO OXFORD CORPORATION


(to be named RUMFORD PAPER COMPANY)


 


MEADWESTVACO ENERGY SERVICES LLC


(to be named NEWPAGE ENERGY SERVICES LLC)


 


	
  UPLAND RESOURCES, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Peter H.Vogel

  	
   

  
	
   

  	
  Name:

  	
  Peter
  H.Vogel

  
	
   

  	
  Title:

  	
  President

  
				



 


 


RUMFORD COGENERATION, INC.


 


	
  RUMFORD FALLS POWER COMPANY

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Peter H.Vogel

  	
   

  
	
   

  	
  Name:

  	
  Peter
  H.Vogel

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
				



 


Notice
Address of Subsidiary Guarantors:


c/o
NewPage Corporation


Courthouse
Plaza N.E.


Dayton,
OH 45463


 


 


[INTERCREDITOR AGREEMENT]