SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of June 3, 2009, among:

 

(1)                                   CELLU TISSUE HOLDINGS, INC.  (the “ Company ”), and certain of the subsidiaries of the Company specified on the signature pages hereof or each other subsidiary that becomes a party hereto;

 

(2)                                   THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as collateral agent (in such capacity, together with its successors and assigns in such capacity, the “ Note Collateral Agent ”), under the Note Security Agreement, dated as of June 3, 2009 (as amended, supplemented or otherwise modified from time to time, the “ Note Security Agreement ”), among the Company, certain of its subsidiaries parties thereto and the Note Collateral Agent for the benefit of the secured parties named therein;

 

(3)                                   JPMORGAN CHASE BANK, N.A., as U.S. administrative agent (in such capacity, together with its successors and assigns in such capacity, the “ Bank Agent ”) under the Pledge and Security Agreement, dated as of June 12, 2006 (as amended, supplemented or otherwise modified from time to time, the “ Bank US Security Agreement ”), among the Company, Cellu Paper Holdings, Inc. (the “Parent”), the other Bank Guarantors (as defined herein) and the Bank Agent for the benefit of the secured parties named therein;

 

(4)                                   JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian administrative agent (in such capacity, together with its successors and assigns in such capacity, the “ Bank Canadian Agent ”; and together with the Bank Agent, collectively, the “ Bank Administrative Agent ”) under the General Security Agreement, dated as of June 12, 2006 (as amended, supplemented or otherwise modified from time to time, the “ Bank Canadian Security Agreement ”; and together with the Bank US Security Agreement, collectively, the “ Bank Security Agreements ”), between the Canadian Borrower (as defined herein) and the Bank Canadian Agent for the benefit of the secured parties named therein; and

 

(5)                                   THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as collateral agent (in such capacity the “ Prior Agent ”), under the Amended and Restated Security Agreement, dated as of June 12, 2006 (as amended, supplemented or otherwise modified from time to time, the “ Prior Note Security Agreement ”), among the Company, certain of its subsidiaries parties thereto and the Prior Agent for the benefit of the secured parties named therein.

 

W   I   T   N   E   S   S   E   T   H :

 

WHEREAS, pursuant to the Credit Agreement, dated as of June 12, 2006 (as amended by the First Amendment dated as of March 21, 2007, the Second Amendment dated as of July 2, 2008, the Third Amendment dated as of September 26, 2008 and the Fourth Amendment dated as of May 19, 2009, and as further amended, supplemented or otherwise modified from time to time, the “ Bank Financing Agreement ”), among the Company (as “ U.S. Borrower ”), the Parent, Interlake Acquisition Corporation Limited (as “ Canadian Borrower ”; and

 

 

together with the Company and any other Person that becomes a borrower under the Bank Financing Agreement, collectively, the “ Borrowers ”), the other loan party guarantors party thereto (together with the Company and any other Person that becomes a guarantor of the Bank Financing Agreement, collectively, the “ Bank Guarantors ”), each other financial institution from time to time party thereto as a lender (the “ Bank Lenders ”), the Bank Agent, as U.S. administrative agent, and the Bank Canadian Agent, as Canadian administrative agent, the Bank Lenders have severally agreed to make extensions of credit and other financial accommodations from time to time to the Borrowers upon the terms and subject to the conditions set forth therein and herein;

 

WHEREAS, in connection with the extensions of credit to the Borrowers under the Bank Financing Agreement and the 9¾% Senior Secured Notes due 2010 (the “ Prior Notes ”) issued by the Company pursuant to the Indenture, dated as of March 12, 2004 (as supplemented by the First Supplemental Indenture dated as of June 2, 2006, the Second Supplemental Indenture dated as of March 21, 2007, the Third Supplemental Indenture dated as of July 2, 2008 and the Fourth Supplemental Indenture dated as of April 8, 2009, the “ Prior Note Indenture ”), the Company entered into an Amended and Restated Intercreditor Agreement, dated as of June 12, 2006, among the Company, certain of its subsidiaries, the Parent, The Bank of New York, as note collateral agent, JPMorgan Chase Bank, N.A., as U.S. administrative agent, JP Morgan Chase Bank, N.A., Toronto Branch, as Canadian administrative agent and The CIT Group/Business Credit, Inc., as agent to the prior bank lenders (the “ Original Intercreditor Agreement ”) for the purpose of setting forth the relative priority of the liens created by the Prior Note Security Agreement and the Bank Security Agreement;

 

WHEREAS, for the purpose of refinancing and replacing the Prior Notes as permitted under the Bank Financing Agreement, the Company is entering into an Indenture, dated as of June 3, 2009 (as amended, supplemented or otherwise modified from time to time, the “ Note Indenture ”), among the Company, its subsidiaries party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, the Company has agreed to issue to the holders (the “ Holders ”) its 11½% Senior Secured Notes due 2014 (the “ Notes ”), and may issue from time to time additional notes, upon the terms and subject to the conditions set forth therein and herein;

 

WHEREAS, the Note Collateral Agent, Bank Administrative Agent, the Company and its subsidiaries party to the Note Indenture desire to enter into this Agreement to amend and restate the Original Intercreditor Agreement for the purpose of removing the Prior Agent as a party, adding the Note Collateral Agent as a party and setting forth the relative priority of the liens created by the Note Security Agreement and the Bank Security Agreements and the respective rights of the Note Collateral Agent and the Bank Administrative Agent in respect of the exercise of the rights and remedies in respect of the Collateral (as defined herein) and the application of the proceeds thereof;

 

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree to amend and restate the Prior Intercreditor Agreement in its entirety as follows:

 

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SECTION 1.    DEFINED TERMS

 

1.1                                  Definitions .  (a)  Unless otherwise defined herein, the following terms are used herein as defined in the New York UCC:  Accessions, Account Debtor, Accounts, Certificated Security, Chattel Paper, Commercial Tort Claims, Documents, Electronic Chattel Paper, Equipment, Farm Products, Financial Assets, Fixtures, General Intangibles, Goods, Instruments, Inventory, Letter-of-Credit Rights, Securities Accounts and Supporting Obligations.

 

(b)                                  The following terms have the following meanings:

 

“ Additional Amounts ”: as defined in the Note Indenture.

 

“ Additional Interest ”: any additional interest payable on the Notes pursuant to Section 2(d) of the Registration Rights Agreement, dated as of June 3, 2009, among the Company, the Note Guarantors and J.P. Morgan Securities Inc., on behalf of itself and the other initial purchasers.

 

“ Agreement ”: this Second Amended and Restated Intercreditor Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Asset Disposition ”: as defined in the Note Indenture.

 

“ Asset Swap ”: as defined in the Note Indenture.

 

“ Bank Borrower Obligations ”: the collective reference to the unpaid principal of and interest on the loans under the Bank Financing Agreement, all amounts owing pursuant to Sections 2.16, 2.17 or 2.18 of the Bank Financing Agreement (collectively, the “ Increased Costs ”) and all other obligations and liabilities of the Borrowers (including, without limitation, interest accruing at the then applicable rate provided in the Bank Financing Agreement after the maturity of the Bank Financing Agreement loans and interest accruing at the then applicable rate provided in the Bank Financing Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Parent, the Borrowers or the other Bank Guarantors, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Bank Administrative Agent or to any Bank Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Bank Financing Agreement, any other Bank Document or any other document made, delivered or given in connection with any of the foregoing and any renewal, replacement, or refinancing thereof, in each case whether on account of principal, premium, if any, the Increased Costs, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Bank Administrative Agent or to any Bank Secured Party that are required to be paid by any of Parent, the Borrowers or the other Bank Guarantors pursuant to the terms of any of the foregoing agreements).

 

“ Bank Collateral Account ”: shall have the same meaning as the term “Collateral Account” under the Bank Security Agreements.

 

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“ Bank Documents ”: the collective reference to the Bank Financing Agreement, the Bank Security Agreements, each Bank Guarantee, the Mortgages in favor of the Bank Administrative Agent for the benefit of the Bank Secured Parties and each other document or agreement pursuant to which the Bank Administrative Agent is granted a Lien in any or all of the Collateral for the benefit of the Bank Secured Parties or is entitled to exercise, or restricted from exercising, any rights or remedies with respect to any or all of the Collateral and any other agreement, document or instrument delivered by or on behalf of any Grantor pursuant to or in connection with any of the foregoing.

 

“ Bank First Priority Lien ”: the reference to “First Priority Interest” and “First Priority Security Interest” as defined in and granted or purported to be granted pursuant to the Bank US Security Agreement and Bank Canadian Security Agreement, respectively.

 

“ Bank Guarantee ”: a guarantee to be executed and delivered by each Bank Guarantor pursuant to the Bank Financing Agreement.

 

“ Bank Guarantor Obligations ”: with respect to each Bank Guarantor, the collective reference to all obligations and liabilities of such Bank Guarantor which may arise under or in connection with any Bank Guarantee or any other document related thereto to which such Bank Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise in respect of Bank Obligations (including, without limitation, all fees, charges and disbursements of counsel to the Bank Administrative Agent or to any other Bank Secured Party that are required to be paid by such Bank Guarantor pursuant to the terms of this Agreement, the Bank Financing Agreement or any other document related hereto to which such Bank Guarantor is a party).

 

“ Bank Obligations ”: the collective reference to the Bank Borrower Obligations and the Bank Guarantor Obligations.

 

“ Bank Priority Collateral ”: with respect to each Grantor, all such Grantor’s now existing or hereinafter arising (i) Inventory, (ii) Receivables, (iii) any and all Instruments, Documents, Chattel Paper (including Electronic Chattel Paper) and other contracts, in each case evidencing or substituted for any Receivable, (iv) guarantees, Supporting Obligations, Letter-of-Credit Rights, security and other credit enhancements for the Receivables, (v) documents of title for any Inventory, (vi) claims and causes of action in any way relating to any of the Receivables or Inventory, (vii) Deposit Accounts, including lockbox and securities accounts, into which any proceeds of Receivables or Inventory are deposited (including all cash, cash equivalents, Financial Assets and other funds on deposit therein or credited thereto) but only with respect to and including such Proceeds of Bank Priority Collateral, (viii) rights to any Goods represented by any of the foregoing, including rights to returned, reclaimed or repossessed Goods, (ix) reserves and credit balances arising in connection with or pursuant thereto, (x) unpaid seller’s or lessor’s rights (including rescission, replevin, reclamation, repossession and stoppage in transit) relating to the foregoing or arising therefrom; (xi) insurance policies or rights relating to any of the foregoing, (xii) General Intangibles pertaining to any and all of the foregoing (including all rights to payment, including those arising in connection with bank and non-bank credit cards), (xiii) promissory notes, deposits or property of Account Debtors securing the obligations of any such Account Debtors to the Bank Secured Parties or any one of them and (xiv) all books and

 

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records (and any electronic media and software related thereto) pertaining to any of the foregoing, and all substitutions, replacements, Accessions, products or Proceeds (including, without limitation, insurance proceeds, cash and cash equivalents) of any of the foregoing; provided , however , that any Collateral, regardless of type, received in connection with an Asset Disposition or Asset Swap of Bank Priority Collateral or otherwise in exchange for Bank Priority Collateral pursuant to the terms of the Note Indenture shall be treated as Bank Priority Collateral under this Agreement, the Note Security Agreement and the Bank Security Agreements; provided , further , that any Collateral of the type that constitutes Bank Priority Collateral, if received in connection with an Asset Disposition or Asset Swap of Note Priority Collateral or otherwise in exchange for Note Priority Collateral pursuant to the terms of the Note Indenture, shall be treated as Note Priority Collateral under this Agreement, the Note Security Agreement and the Bank Security Agreements; provided , further , that the Bank Priority Collateral shall not include any Excluded Property (as defined in the Bank Security Agreements) unless such property is subject to a Lien securing the Notes or any Permitted Refinancing Indebtedness (as defined in the Bank Financing Agreement).

 

“ Bank Second Priority Lien ”: the reference to “Second Priority Interest” and “Second Priority Security Interest” as defined in and granted or purported to be granted pursuant to the Bank US Security Agreement and Bank Canadian Security Agreement, respectively.

 

“ Bank Secured Parties ”: the secured parties under the Bank Security Agreements.

 

“ Borrowing Base ”: as of the date of determination, an amount equal to the sum, without duplication of 85% of the net book value of the Company’s and its Restricted Subsidiaries’ (as defined in the Note Indenture) accounts receivable at such date and (2) 65% of the net book value of the Company’s and its Restricted Subsidiaries’ inventories at such date.  Net book value shall be determined in accordance with GAAP and shall be calculated using amounts reflected on the most recent available balance sheet (it being understood that the accounts receivable and inventories of an acquired business may be included if such acquisition has been completed on or prior to the date of determination).

 

“ Business Day ”: 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.

 

“ Collateral ”:  the Note Priority Collateral and the Bank Priority Collateral.

 

“ Deposit Account ”:  as defined in the Uniform Commercial Code (or equivalent foreign law, as applicable) of any applicable jurisdiction and, in any event, including, without limitation; any demand, time, savings, passbook or like account maintained with a depositary institution.

 

“ Governmental Authority ”: any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory, supervisory or administrative powers or functions or of pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

 

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“ Grantor ”: any of the Company, Cellu Tissue—CityForest LLC, Cellu Tissue Corporation — Natural Dam, Cellu Tissue Corporation — Neenah, Cellu Tissue — Long Island, LLC, Cellu Tissue — Thomaston, LLC, Cellu Tissue LLC, Coastal Paper Company, Interlake Acquisition Corporation Limited, Menominee Acquisition Corporation, Van Paper Company, Van Timber Company, and any other subsidiary of the Company that becomes a Bank Guarantor or a Note Guarantor.

 

“ Insolvency Proceeding ”: the occurrence of any of the following: (i) any Grantor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent entity, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Grantor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Grantor any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Grantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Grantor shall take any action indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Grantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.

 

“ Investment Property ”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the New York UCC (other than, in the case of the Bank Security Agreements, any Voting Stock of any Non-U.S. Person excluded from the definition of “Pledged Stock” in the Bank Security Agreements and, in the case of the Note Security Agreement, any Foreign Subsidiary Voting Stock or other Capital Stock excluded from the definition of “Pledged Stock” in the Note Security Agreement) and (ii) whether or not constituting “investment property” as so defined, all Pledged Notes and all Pledged Stock (each as defined in the Bank Security Agreements and the Note Security Agreement).

 

“ Liens ”: any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

 

“ Mortgages ”: each of the mortgages and deeds of trust now or hereafter made by any Grantor in favor of, or for the benefit of, the Note Collateral Agent for the benefit of the Note Secured Parties or the Bank Administrative Agent for the benefit of the Bank Secured Parties.

 

“ New York UCC ”: the Uniform Commercial Code as from time to time in effect in the State of New York; provided that, with respect to any Grantor not organized or formed

 

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under the laws of the United States of America, any State of the United States or the District of Columbia, “New York UCC” shall mean the equivalent foreign law to the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

 

“ Note Collateral Account ”: shall have the same meaning as the term “Collateral Accounts” under the Note Security Agreement.

 

“ Note Company Obligations ”: the collective reference to the unpaid principal of, premium, if any, Additional Amounts and interest (including Additional Interest) on the Notes and all other obligations and liabilities of the Company to the Note Collateral Agent or to any Note Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Note Indenture, the Note Security Agreement, any other Note Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, premium, if any, Additional Amounts, interest (including Additional Interest), reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Note Collateral Agent or to the Note Secured Parties that are required to be paid by any of the Company or the Note Guarantors pursuant to the terms of any of the foregoing agreements).

 

“ Note Documents ”: the collective reference to the Note Indenture, the Note Security Agreement, each Note Guarantee, the Registration Rights Agreement, the Mortgages and each other document or agreement pursuant to which the Note Collateral Agent is granted a Lien in any or all of the Collateral for the benefit of the Note Secured Parties or is entitled to exercise, or restricted from exercising, any rights or remedies with respect to any or all of the Collateral and any other agreement, document or instrument delivered by or on behalf of any Grantor pursuant to or in connection with any of the foregoing.

 

“ Note First Priority Lien ”: the reference to “First Priority Interest” as defined in and granted or purported to be granted pursuant to the Note Security Agreement.

 

“ Note Guarantee ”: a guarantee to be executed and delivered by a Note Guarantor pursuant to the Note Indenture.

 

“ Note Guarantors ” the collective reference to each Grantor other than the Company.

 

“ Note Guarantor Obligations ”: with respect to any Note Guarantor, the collective reference to all obligations and liabilities of such Note Guarantor which may arise under or in connection with any Note Guarantee or any other document related thereto to which such Note Guarantor is a party; in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise in respect of Note Obligations (including, without limitation, all fees, charges and disbursements of counsel to the Note Collateral Agent or to any other Note Secured Party that are required to be paid by such Note Guarantor pursuant to the terms of this Agreement, the Note Indenture or any other document related hereto to which such Note Guarantor is a party).

 

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“ Note Obligations ”: the collective reference to the Note Company Obligations and the Note Guarantor Obligations.

 

“ Note Priority Collateral ”: with respect to each Grantor, any and all property secured by the Mortgages in favor of the Note Collateral Agent for the benefit of the Note Secured Parties and the following property now owned or hereafter acquired by such Grantor or in which such Grantor has now or at any time in the future may acquire any right, title or interest: all Chattel Paper, Deposit Accounts (except to the extent that such Deposit Accounts or funds or other amounts credited thereto constitute Bank Priority Collateral), Documents (other than title documents with respect to Vehicles), Equipment, General Intangibles, Instruments, Intellectual Property, Investment Property, Letter-of-Credit Rights, Commercial Tort Claims and all other property not described above, all books and records pertaining to the foregoing and, to the extent not otherwise included in the foregoing, all Proceeds, all Supporting Obligations and all products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing; but, excluding, however, all Bank Priority Collateral; provided , however , that any Collateral, regardless of type, received in connection with an Asset Disposition or Asset Swap of Note Priority Collateral or otherwise in exchange for Note Priority Collateral, or any additional issuance of Notes, pursuant to the terms of the Note Indenture shall be treated as Note Priority Collateral under this Agreement, the Note Security Agreement and the Bank Security Agreements; provided , further , that any Collateral of the type that constitutes Note Priority Collateral, if received in connection with an Asset Disposition or Asset Swap of Bank Priority Collateral or otherwise in exchange for Bank Priority Collateral pursuant to the terms of the Note Indenture, shall be treated as Bank Priority Collateral under this Agreement, the Note Security Agreement and the Bank Security Agreements.

 

“ Note Second Priority Lien ”: the reference to “Second Priority Interest” as defined in and granted or purported to be granted pursuant to the Note Security Agreement.

 

“ Note Secured Parties ”: the secured parties under the Note Security Agreement.

 

“ Obligations ”: any or all of the Bank Borrower Obligations, the Bank Guarantor Obligations, the Note Company Obligations and the Note Guarantor Obligations.

 

“ Person ”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision hereof or any other entity.

 

“ Proceeds ”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC and, in any event, shall include, without limitation, all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.

 

“ Receivables ”: all accounts (as defined in the New York UCC) and any and all other receivables and any other right to payment for goods sold or leased or for services rendered, including, without limitation, all accounts created by, or arising from, all of each of the Grantor’s sales, leases, rentals of goods or renditions of services to their customers, in each case (i) including, but not limited to, those accounts arising under any of the Grantors’ trade names or

 

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styles, or through any of the Grantors’ divisions, and (ii) whether or not (x) such right is evidenced by an Instrument or Chattel Paper, (y) such right has been earned by performance (including, without limitation, any account) or (z) specifically listed on schedules furnished to the Bank Administrative Agent.

 

“ Requirement of Law ”: as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Secured Debt Documents ”: the collective reference to the Note Documents and the Bank Documents.

 

“ Secured Parties ”: the collective reference to the Note Secured Parties and the Bank Secured Parties.

 

1.2                                  Other Definitional Provisions .   (a)  The words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.

 

(b)                                  The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(c)                                   Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

 

(d)                                  Subject to Sections 2.2(j) and 2.3(j), the phrases “satisfied in full” or “payment in full” (or phrases of similar import) when used in this Agreement with respect to any of the Note Obligations, or the Bank Obligations (or the Liens securing such obligations), as the case may be, shall mean satisfaction or payment in full of such applicable obligations other than contingent indemnification obligations which are not then due and payable (or reasonably expected to become due and payable in the then foreseeable future).

 

SECTION 2.   RANKING OF SECURITY INTERESTS; REMEDIES

 

2.1                                  Ranking .  Notwithstanding (i) anything to the contrary contained in any other document, filing or agreement related to the creation, attachment, perfection or existence of the security interests granted in the Note Security Agreement or the Bank Security Agreements, (ii) the time, place, order or method of attachment or perfection of such security interests, (iii) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect such security interests and (iv) the rules for determining priority under any law governing the relative priorities of secured creditors, (a) the security interests created or purported to be created by the Note Security Agreement with respect to the Bank Priority Collateral are subordinated, and junior in priority to, the security interests created or purported to be created by the Bank Security Agreements with respect to the Bank Priority Collateral and (b)

 

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the security interests created or purported to be created by the Bank Security Agreements with respect to the Note Priority Collateral are subordinated, and junior in priority to, the security interests created or purported to be created by the Note Security Agreement with respect to the Note Priority Collateral.

 

2.2                                  Remedies with Respect to Note Priority Collateral . (a)  The Bank Administrative Agent acknowledges and agrees that, until all of the Note Obligations have been paid in full, the exercise of rights and remedies in respect of the Note Priority Collateral by the Bank Administrative Agent shall be limited to the extent set forth in, and shall be governed by, this Agreement.

 

(b)                                  Until the Note Obligations shall have been satisfied in full, other than to the extent expressly provided in this Agreement, no Bank Secured Party shall exercise any rights or remedies in respect of the Note Priority Collateral, whether under a Secured Debt Document, applicable law or otherwise, including, without limitation, any action to institute any judicial or nonjudicial or similar action or proceeding in respect of its Lien or to seek relief from the automatic stay pursuant to Section 362 of the Bankruptcy Code in respect of its Lien; provided , however , that nothing contained herein shall be construed as preventing the Bank Administrative Agent or any Bank Secured Party from taking a