Exhibit 10.2
Execution Version
SUPPLEMENT NO. 1 TO GUARANTEE AND COLLATERAL AGREEMENT
SUPPLEMENT NO. 1 dated as of January 7, 2015 (this “Supplement”), to the Guarantee and Collateral Agreement dated as of May 4, 2012 (the “Guarantee and Collateral Agreement”), among VERSO PAPER FINANCE HOLDINGS LLC, a Delaware limited liability company (“Holdings”), VERSO PAPER HOLDINGS LLC, a Delaware limited liability company (the “Company”) each Subsidiary of the Company identified on Schedule I or otherwise identified therein as a party (each, a “Subsidiary Party”), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, together with any successor administrative agent, the “Administrative Agent”) for the Secured Parties (as defined therein).
Section 7.16 of the Guarantee and Collateral Agreement provides that additional Subsidiaries may become Subsidiary Parties under the Guarantee and Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Subsidiary”) is executing this Supplement to become a Subsidiary Party under the Guarantee and Collateral Agreement in order to induce the Secured Parties to make or continue extensions of credit.
Accordingly, the Administrative Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party, a Guarantor and a Pledgor under the Guarantee and Collateral Agreement with the same force and effect as if originally named therein as a Subsidiary Party, a Guarantor and a Pledgor, and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Guarantee and Collateral Agreement applicable to it as a Subsidiary Party, a Guarantor and a Pledgor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor and a Pledgor thereunder are true and correct, in all material respects, on and as of the date hereof. In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Obligations (as defined in the Guarantee and Collateral Agreement), does hereby create and grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in and Lien on all the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Guarantee and Collateral Agreement) of the New Subsidiary. Each reference to a “Subsidiary Party”, a “Guarantor” or a “Pledgor” in the Guarantee and Collateral Agreement shall be deemed to include the New Subsidiary. The Guarantee and Collateral Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
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SECTION 3. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. This Supplement shall become effective when (a) the Administrative Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and (b) the Administrative Agent has executed a counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of all the Pledged Securities of the New Subsidiary as of the date hereof, (b) set forth on Schedule II attached hereto is a true and correct schedule of all of the material Patents, Trademarks and Copyrights of the New Subsidiary as of the date hereof, (c) set forth on Schedule III attached hereto is a true and correct schedule of all Commercial Tort Claims of the New Subsidiary individually in excess of $5.0 million as of the date hereof and (d) set forth under its signature hereto, is the true and correct legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In the event any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee and Collateral Agreement shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Guarantee and Collateral Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this Supplement to the Guarantee and Collateral Agreement as of the day and year first above written.
| NEWPAGE HOLDINGS INC., | ||
| By: | /s/ Robert P. Mundy | |
| Name: | Robert P. Mundy | |
| Title: | Senior Vice President and Chief | |
| Financial Officer | ||
| Legal Name: NewPage Holdings Inc. |
| Jurisdiction of Formation: Delaware |
| Location of Chief Executive Office: |
| 6775 Lenox Center Court, Suite 400 |
| Memphis, TN 38115-4436 |
| Attention: Robert P. Mundy |
| Fax: (901) 369-4197 |
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, |
| as Administrative Agent |
| By: | /s/ Robert Hetu | |
| Name: | Robert Hetu | |
| Title: | Authorized Signatory | |
| By: | /s/ Liagzi Huang | |
| Name: | Liagzi Huang | |
| Title: | Authorized Signatory | |
[Signature Page to Supplement No. 1 to Cash Flow Guarantee and Collateral Agreement]
Schedule I
to Supplement No. 1 to the
Guarantee and
Collateral Agreement
Pledged Securities of the New Subsidiary
EQUITY INTERESTS
Issuer | Number of Issuer Certificate | Registered Owner | Number and Class of Equity Interest | Percentage of | ||||
NewPage Investment Company LLC | 1 | NewPage Holdings Inc. | One (1) membership interest | 100% |
DEBT SECURITIES
Issuer | Principal Amount | Date of Note | Maturity Date | |||
| None. |
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Schedule II
to Supplement No. 1 to the
Guarantee and
Collateral Agreement
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
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Schedule III
to Supplement No. 1 to the
Guarantee and
Collateral Agreement
COMMERCIAL TORT CLAIMS
None.
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