EXHIBIT 10.A
CONFORMED COPY
AMENDMENT NO. 2 AND CONSENT
AMENDMENT NO. 2 AND CONSENT dated as of July 18, 1996 (the
"Amendment") to the Receivables Purchase Agreement, dated as of May 16, 1994 (as
amended to date, the "Receivables Purchase Agreement") among XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK ("Xxxxxx Guaranty"), in its capacity as Administrative
Agent, NATIONAL STEEL FUNDING CORPORATION, a Delaware corporation ("NSFC"),
NATIONAL STEEL CORPORATION, a Delaware corporation, ("NSC") the financial
institutions party thereto, as buyers (the "Buyers"), the Letter of Credit
Issuing Banks party thereto, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
structuring and collateral agent (the "Receivables Collateral Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into the
Receivables Purchase Agreement;
WHEREAS, the parties hereto desire to amend the Receivables Purchase
Agreement to provide for the pledging of inventory by NSC under an Inventory
Security Agreement dated as of the date hereof (the "Inventory Security
Agreement") between NSC and The Long-Term Credit Bank of Japan, Ltd. ("LTCB") as
Collateral Agent to secure its obligations under an Inventory Credit Agreement
dated as of the date hereof (the "Inventory Credit Agreement") among NSC, the
lenders listed therein, and LTCB as structuring agent and collateral agent, and
under the Credit Agreement dated as of the date hereof (the "Fuji Credit
Agreement") between NSC and the Fuji Bank and Trust Company; and
WHEREAS, it is further necessary to evidence the consent and
instruction of the Buyers with respect to the related Intercreditor Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Receivables
Purchase Agreement shall have the meaning assigned to such term in the
Receivables Purchase Agreement.
SECTION 2. Amendment to Section 1.01 of the Receivables Purchase
Agreement. Section 1.01 of the Receivables Purchase Agreement is amended by (i)
replacing "May 16, 2000" in the definition of "Expiry Date" with "May 16, 2001"
and (ii) adding, in their appropriate alphabetical positions, the following
definitions:
"Fuji Credit Agreement" means the Credit Agreement dated as of July
18, 1996 between NSC and The Fuji Bank and Trust Company, as amended from time
to time.
"Inventory Credit Agreement" means the Inventory Credit Agreement
dated as of July 18, 1996 among NSC, the Lenders listed therein, The Long-Term
Credit Bank of Japan, Ltd., ("LTCB") as Administrative Agent, and LTCB as
Structuring Agent and Collateral Agent, as amended from time to time.
"Inventory Security Agreement" means the Inventory Security Agreement
dated as of July 18, 1996 between NSC, and The Long-Term Credit Bank of Japan,
Ltd., as Structuring Agent and Collateral Agent, as amended from time to time.
SECTION 3. Amendment to Section 6.01 of the Receivables Purchase
Agreement. Section 6.01 of the Receivables Purchase Agreement is amended by
replacing "." at the end of paragraph (u) with"; or", and adding the following
new paragraph (v):
(v) an Automatic Release Termination (as defined in the Inventory
Security Agreement) shall occur under the Inventory Security Agreement, or
an Event of Default specified in clause (g) or (h) of Section 6.1 of the
Inventory Credit Agreement or clause (g) or (h) of Section 6.1 of the Fuji
Credit Agreement shall occur with respect to the Borrower thereunder, or an
Enforcement Notice (as defined in the Inventory Security Agreement) shall
be given to the Borrower under the Inventory
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Security Agreement; or a Release Termination Notice is given under the
Intercreditor Agreement; or any of the provisions of the Inventory Security
Agreement, the Inventory Credit Agreement or the Fuji Credit Agreement
relating to the automatic release of Proceeds of Inventory (as defined in
the Inventory Security Agreement) including, without limitation, any
defined terms or other provisions incorporated therein shall be waived or
amended or otherwise have been modified or limited in force and effect
without the consent of all of the Buyers and the Reserve L/C Bank.
SECTION 4. Amendment to Section 6.02 of the Receivables Purchase
Agreement. Section 6.02 of the Receivables Purchase Agreement is amended by
adding immediately following the text "Section 6.01(n)" the following new text:
"or a Termination Event under Section 6.01(v)"
SECTION 5. Amendment to Schedule I of the Receivables Purchase
Agreement. Schedule I of the Receivables Purchase Agreement is amended to read
in its entirety as set forth in Exhibit A attached hereto.
SECTION 6. Changes in Commitments. With effect from and including the
date this Amendment No. 2 and Consent becomes effective in accordance with
Section 9 hereof, the Commitment of each Buyer shall be the amount set forth
opposite the name of such Buyer on the signature page hereof.
SECTION 7. Consent to the Intercreditor Agreement. The Buyers party
hereto hereby consent to, and instruct Xxxxxx Guaranty Trust Company of New York
as Collateral Agent to enter into, on behalf of the Buyers, an Intercreditor
Agreement substantially in the form attached as Exhibit B hereto.
SECTION 8. Governing Law. This Amendment and Consent shall be governed
by and construed in accordance with the laws of the State of New York.
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SECTION 9. Counterparts; Effectiveness. This Amendment and Consent may
be signed in any number of counterparts, each of which shall be an original with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment and Consent shall become effective as of the date
hereof when the Administrative Agent shall have received (i) duly executed
counterparts hereof signed by NSFC and all of the Buyers (or, in the case of any
party as to which an executed counterpart shall not have been received, the
Administrative Agent shall have received telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such party)
and (ii) notice from NSC that each of the Inventory Credit Agreement and Fuji
Credit Agreement have become effective.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
NATIONAL STEEL FUNDING CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
Title: Treasurer
NATIONAL STEEL CORPORATION,
as Servicer
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Structuring and Collateral Agent and
Reserve Letter of Credit Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Letter of
Credit Issuing Bank
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Title: Vice President
THE FUJI BANK AND TRUST COMPANY,
as Letter of Credit Issuing Bank
By: /s/ Yuichi Tsuchiko
-------------------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI, LTD.,
as Letter of Credit Issuing Bank
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
COMERICA BANK, as Letter of
Credit Issuing Bank
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Assistant Vice President
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BUYERS:
$30,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Title: Vice President
$30,000,000 THE FUJI BANK AND TRUST COMPANY
By: /s/ Yuichi Tsuchiko
-------------------------------------
Title: Vice President
$25,000,000 COMERICA BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Assistant Vice President
$25,000,000 BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
$20,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Taisuke Hitomi
-------------------------------------
Title: Deputy General Manager
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$15,000,000 THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH
By: /s/ Xxxxx Silver
-------------------------------------
Title: Vice President and Group Leader
$15,000,000 THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By: /s/ Noburu Himata
-------------------------------------
Title: Senior Vice President
$15,000,000 NBD BANK
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Title: Second Vice President
$15,000,000 THE YASUDA TRUST AND BANKING CO., LTD.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Vice President and Manager
$10,000,000 MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
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EXHIBIT A
Additions, Changes, Deletions to National Steel Funding Corp. RPA - Amendment
No.2
Schedule 1
Special Obligors and Concentration Limits
-----------------------------------------
Rating
------
Obligor X-0 X-0 X-0 Unrated
------- ---- ---- ---- --------
General Motors Corporation 20% 16% 10% 4%
Ford Motor Company 15% 8% 7% 4%
Chrysler Motors Corporation 15% 8% 7% 4%
Silgan Containers Corporation 10% 8% 7% 6%
Xxxxxxxx Steel Products, Inc. 10% 8% 6% 5%
Ball Xxxxxx Corporation 10% 8% 7% 6%
The rating referred to above at any time is the rating then assigned by S&P to
the short-term unsecured debt of the Obligor.
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EXECUTION COPY
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of July 18, 1996 (as amended, modified or
supplemented from time to time, this "Agreement), among THE LONG-TERM CREDIT
BANK OF JAPAN, LTD., acting through its New York Branch ("LTCB"), as
Administrative Agent (the "Administrative Agent") for the lenders listed in the
Inventory Credit Agreement, dated as of the date hereof (as amended, modified as
supplemented from time to time, to "Inventory Credit Agreement"), LTCB in its
capacity as collateral agent and structuring agent (the "Collateral Agent) under
the Inventory Security Agreement, dated as of the date hereof (as amended,
modified or supplemented from time to time, the "Inventory Security Agreement"),
between National Steel Corporation, a Delaware corporation ("NSC"), and LTCB as
Collateral Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK ("Xxxxxx Guaranty"),
in its capacity as Administrative Agent, under the Receivables Purchase
Agreement, dated as of May 16, 1994 (as amended, modified or supplemented from
time to time, the "Receivables Facility"), among National Steel Funding
Corporation, a Delaware corporation ("NSFC"), NSC, as Servicer, the financial
institutions party thereto (the "Buyers"), certain letter of credit issuing
banks, X.X. XXXXXX DELAWARE, as reserve letter of credit bank, XXXXXX GUARANTY,
as Administrative Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
structuring and collateral agent (the "Receivables Collateral Agent"), and THE
FUJI BANK AND TRUST COMPANY, acting through its New York Branch ("FUJI").
W I T N E S S E T H:
--------------------
WHEREAS, pursuant to and subject to the terms and conditions set forth in
an Inventory Credit Agreement, the Lenders listed therein (the "LTCB Lenders"),
have agreed to make extensions of credit to NSC, which extensions of credit are
to be secured by a first priority security interest in the Inventory (as defined
in the Inventory Security Agreement) of NSC and the proceeds thereof (such
inventory and such proceeds thereof, collectively, the "Inventory Collateral"),
granted pursuant to the Inventory Security Agreement;
WHEREAS, pursuant to and subject to the terms and conditions set forth in a
Credit Agreement, dated as of the date hereof (as amended, modified or
supplemented from time to time, the "Fuji Credit Agreement"), between NSC and
Fuji, Fuji has agreed to make extensions of credit to NSC, which extensions of
credit are to be secured by a second priority security interest in the Inventory
Collateral, pursuant to the Inventory Security Agreement;
WHEREAS, pursuant to and subject to the terms of the Receivables Facility,
the Buyers have agreed to make extensions of credit to NSFC, in order to enable
NSFC to purchase certain eligible accounts receivable from NSC, and in
connection therewith, the Buyers have purchased undivided interests in the
receivables of NSC;
WHEREAS, it is a condition precedent to the agreement of the LTCB Lenders
to extend credit under the Inventory Credit Agreement and to the agreement of
Fuji to extend credit
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EXECUTION COPY
under the Fuji Credit Agreement (collectively, the "Inventory Facilities"), that
the Collateral Agent and the LTCB Lenders have a first priority security
interest in the Inventory Collateral and the Collateral Agent and Fuji have a
second priority security interest in the Inventory Collateral; and
WHEREAS, the Collateral Agent, the LTCB Lenders, Fuji, Xxxxxx Guaranty, and
the Receivables Collateral Agent desire to enter into this Agreement to
establish their respective relative rights concerning the Inventory Collateral.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Security Interest Priorities; Release.
-------------------------------------
a. Notwithstanding (i) the date, manner or order of perfection of the
security interests in and liens on the Inventory Collateral or the lien notation
or filing of financing statements or continuation statements, and (ii) any
provisions of the Uniform Commercial Code of any applicable jurisdiction or any
other applicable law or judicial decision, each of the Collateral Agent, the
LTCB Lenders, Fuji, Xxxxxx Guaranty and the Receivables Collateral Agent agrees
that the security interests of the Collateral Agent, on behalf of the LTCB
Lenders and Fuji, in the Inventory Collateral shall have priority over the
security interest of the Receivables Collateral Agent in the Inventory
Collateral to the full extent of NSC's obligations outstanding from time to time
to the respective Lenders under the Inventory Facilities (the "NSC Inventory
Obligations"); provided, however, that such security interest in the proceeds of
the Inventory shall be automatically released upon the sale of such Inventory
until the earliest of (i) an event of default specified in clauses (g) or (h) of
Section 6.1 of the Inventory Credit Agreement or clauses (g) or (h) of the Fuji
Credit Agreement, (ii) the second Business Day after notice (a "Release
Termination Notice") has been given by the Collateral Agent to the Receivables
Collateral Agent that an event of default under clause (a) of Section 6.1 of the
Inventory Credit Agreement or clause (a) of Section 6.1 of the Fuji Credit
Agreement has occurred and is then continuing, and that the Collateral Agent has
been instructed under the Inventory Security Agreement to give such notice, or
(iii) the second Business Day after a Release Termination Notice has been given
by the Collateral Agent to the Receivables Collateral Agent that any other event
of default has occurred and is continuing under either the Inventory Credit
Agreement or the Fuji Credit Agreement if the Release Termination Notice sets
forth that, at the date of such notice, the Borrowing Base (as determined under
the Inventory Credit Agreement) is less than the aggregate Secured Obligations
(as defined in the Inventory Security Agreement).
b. The parties hereto acknowledge and agree that the interest of the
Receivables Collateral Agent and the Buyers in the Inventory Collateral is
limited to the extent set forth in the definition of "Related Security"
contained in the Receivables Facility.
Section 2. Representation. By its execution and delivery of this
Agreement, the Receivables Collateral Agent represents and warrants that it has
received the consent of the necessary Buyers and the other parties to the
Receivables Facility to the execution and delivery by the Receivables Collateral
Agent of this Agreement for and on behalf of the Buyers and such other parties
to the Receivables Facility.
Section 3. Miscellaneous.
-------------
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EXECUTION COPY
(a) Notices. All notices and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex, telecopy, telegraph,
cable or in writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telex or telecopier (with
receipt confirmed either mechanically or in writing by a person at the office of
the recipient), personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
(b) Amendments. This Agreement sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended, supplemented, modified, waived or
terminated except in a written instrument signed by all of the parties hereto.
(c) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(d) Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(e) Termination. This Agreement shall terminate upon the termination
of the Inventory Facilities or Receivables Facility, and the satisfaction in
full of all obligations due thereunder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
New York Branch
as Collateral Agent under the Inventory Security
Agreement
By
Title:
Address for Notices:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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EXECUTION COPY
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxx
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
New York Branch
as Administrative Agent under the Inventory
Credit Agreement
By
Title:
Address for Notices:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxx
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EXECUTION COPY
THE FUJI BANK AND TRUST COMPANY
By
------------------------------------
Title:
Address for Notices:
--------------------
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: T. Umezawa
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent under the Receivables Purchase
Agreement
By
------------------------------------
Title:
Address for Notices:
--------------------
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxx
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EXECUTION COPY
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as structuring and collateral agent under the
Receivables Purchase Agreement
By
---------------------------------
Title:
Address for Notices:
--------------------
Xxxxxx Xxxxxxxxxx Center
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
ACKNOWLEDGED AND AGREED:
NATIONAL STEEL CORPORATION
By
------------------------
Title:
Address for Notices:
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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