Exhibit 4.6
ACCESS INTERCREDITOR AGREEMENT
ACCESS INTERCREDITOR AGREEMENT ("Agreement"), dated as of August
16, 2002, between (a) FLEET CAPITAL CORPORATION, a Rhode Island corporation,
acting in its capacity as Administrative Agent (as hereinafter defined), for
itself and the other Lenders (as hereinafter defined) party to the Credit
Agreement (as hereinafter defined), (b) LASALLE BANK NATIONAL ASSOCIATION,
acting in its capacity as Indenture Trustee (as hereinafter defined) and
Collateral Agent (as hereinafter defined) for the Senior Note Holders (as
hereinafter defined), (c) REPUBLIC ENGINEERED PRODUCTS LLC, a Delaware limited
liability company (the "Borrower"), (d) BLUE BAR, L.P., a Delaware limited
partnership (the "Parent"), and (e) BLUE STEEL CAPITAL CORP., a Delaware
corporation ("Blue Steel"), and N&T Railway Company LLC, a Delaware limited
liability company (collectively, the "Subsidiary Guarantors", and together with
the Borrower and the Parent, the "Companies").
R E C I T A L S:
A. Reference is made to (i) the Revolving Credit Agreement, dated
as of August 16, 2002 (as amended, amended and restated, supplemented or
otherwise modified from time to time, including any refinancing, re-funding,
replacement or extension thereof or a portion thereof and whether by the Lenders
(as hereinafter defined) or any other lender or group of lenders, (but excluding
any such refinancing, replacement or refunding thereof that would violate the
terms of the Indenture as in effect on the date hereof) the "Credit Agreement"),
among the Borrower, the Parent, the Subsidiary Guarantors, the financial
institutions party thereto as lenders (the "Lenders"), and Fleet Capital
Corporation, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"; together with the Lenders, the "Credit Agreement
Parties"), and (ii) the Indenture, dated as of August 16, 2002 (as amended or
modified from time to time, the "Indenture"), among LaSalle Bank National
Association, a national banking association, as trustee (in such capacity, the
"Indenture Trustee") and as collateral agent (in such capacity, the "Collateral
Agent")for the holders of the Senior Notes (as defined below) from time to time
(the "Senior Note Holders"), the Borrower and Blue Steel, as issuers (the
"Issuers"), the Parent and the Subsidiary Guarantors party thereto.
B. The Lenders have agreed to make Revolving Credit Loans (as
defined in the Credit Agreement and which term will include any loans,
revolving, term or otherwise, made under the Credit Agreement) to, and issue
Letters of Credit (as defined in the Credit Agreement) for the account of, the
Borrower in an aggregate principal amount of up to $336,000,000 upon the terms
and subject to the conditions specified in the Credit Agreement. Pursuant to the
Indenture, the Issuers are issuing $80,000,000 aggregate principal amount of
their 10% Senior Secured Notes due 2009 (together with any substantially
identical notes of the Issuers issued in exchange therefor in accordance with
the Indenture, the "Senior Notes").
-2-
C. Pursuant to the Credit Agreement Security Documents to which
the Borrower and each Subsidiary Guarantor is a party, the Borrower and each
Subsidiary Guarantor is granting to the Administrative Agent, for the benefit of
the Credit Agreement Parties, a lien on and security interest in the Credit
Agreement Collateral to secure the Credit Agreement Obligations. Pursuant to the
Senior Note Security Documents to which the Borrower and each Subsidiary
Guarantor is a party, the Borrower and each Subsidiary Guarantor are granting to
the Indenture Trustee, for the benefit of the Senior Note Holders, a lien on and
security interest in the Senior Note Collateral to secure the Senior Note
Obligations.
D. In addition, each of the Borrower and the Parent is entering
into the Pledge Agreement, dated as of the date hereof (the "Lender Pledge
Agreement"), under which each of the Borrower and the Parent is granting to the
Administrative Agent a lien on and security interest in the Shared Collateral to
secure the Credit Agreement Obligations. Pursuant to the Indenture, each of the
Borrower and the Parent is also entering into the Pledge Agreement, dated as of
the date hereof (the "Indenture Pledge Agreement", and together with the Lender
Pledge Agreement, the "Pledge Agreements"), under which it is granting to the
Indenture Trustee a lien on and security interest in the Shared Collateral to
secure the Senior Note Obligations. The Shared Collateral shall be shared pari
passu among the Credit Agreement Parties and the Senior Note Holders in
accordance with the provisions of the Pledge Intercreditor Agreement.
E. On April 2, 2001, Republic Technologies International ("RTI")
and certain of its subsidiaries commenced cases in the United States Bankruptcy
Court for the Northern District of Ohio, Eastern Division (the "Bankruptcy
Court"), under Chapter 11 of the Bankruptcy Code. On the date hereof, the
Borrower is acquiring a substantial portion of the assets of RTI and its
subsidiaries pursuant to the following: (i) an Asset Purchase Agreement, dated
June 7, 2002 (as amended, supplemented or otherwise modified from time to time,
the "RTI Asset Purchase Agreement"), among RTI and certain of its subsidiaries,
and the Borrower; and (ii) an order of Bankruptcy Court, dated July 23, 2002
(the "Sale Order"), entitled "Amended Order Superseding Order (A) Approving Sale
of Certain Assets Free and Clear Of Liens and Stamp or Transfer Taxes Pursuant
to Bankruptcy Code Section 363(f) and 1146(c), (B) Approving Assumption and
Assignment of Executory Contracts and Unexpired Leases Subject to the Sale
Pursuant to Bankruptcy Code Section 364 and, (C) Approving Settlement Agreement
USWA, and (D) Waiving the Requirements of Local Bankruptcy Rule 9013-1(a) and
the Ten Day Stay Period Provided by Bankruptcy Rule 6004(g), to which is
attached and made a part thereof the Stipulation Settling Disputes between
Republic Technologies International, LLC, RT Acquisition LLC, Fleet Capital
Corporation, as agent, and the Majority Noteholders of Senior Secured 13-3/4%
Notes (the "RTI Majority Noteholders"), dated July 11, 2002 (the "Stipulation").
Pursuant to the Sale Order, and in exchange for the issuance of the Senior
Notes, all Liens on the property and assets to be purchased pursuant to the RTI
Asset Purchase Agreement and the Sale Order which constitutes collateral
securing the RTI Notes ("Specified Noteholder Collateral") that is subject to
the jurisdiction of the Bankruptcy Court are to be released at the time of the
purchase and the Senior Notes are to be secured by a first lien on the Specified
Noteholder Collateral. The rights, claims and interests of the RTI Notes, the
holders thereof and the relevant Indenture Trustee as to the collateral of the
RTI Notes that are not being purchased by the Purchaser pursuant to the RTI
Asset Purchase Agreement and Sale Order shall not be subject to this Agreement
in any respect and the rights of the holders of the RTI Notes and the Indenture
Trustee are preserved and are not adversely affected hereby.
-3-
F. Each of the Secured Parties desires to provide for their
respective rights in respect of the Collateral to which it is entitled and
certain collections from the Companies and to make certain other commitments and
undertakings in connection with the Senior Credit Documents, the obligations
incurred by the Companies under such agreements and the rights of the Secured
Parties under such agreements.
A G R E E M E N T:
Accordingly, each of the Secured Parties and each of the
Companies hereby agrees as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definition of Terms Used Herein. All capitalized
terms used but not defined herein shall have the meanings set forth in the
Credit Agreement, the Indenture, the Lender Pledge Agreement and the Indenture
Pledge Agreement, as identified and defined herein. All references to specific
Sections in the Credit Agreement shall be deemed to also be references to the
parallel provision of any other credit agreement included within the definition
of "Credit Agreement."
SECTION 1.02. Definitions of Certain Terms Used Herein. As used
herein, the following terms shall have the meanings set forth below:
"Accounts" shall mean, collectively, all of the Borrower's and
Subsidiary Guarantors' presently existing and hereafter arising or acquired
"accounts" as such term is defined in the UCC, and in any event shall include,
without limitation, (i) any and all accounts, accounts receivable, margin
accounts, futures positions, book debts, instruments, documents, contracts,
contract rights, choses in action, notes, drafts, acceptances, chattel paper,
and other forms of obligations and receivables now or hereafter owned or held by
or payable to the Borrower or any Subsidiary Guarantor relating in any way to
Inventory or arising from the sale or lease of Inventory or the rendering of
services by the Borrower or any Subsidiary Guarantor, including the right to
payment of any interest or finance charge with respect thereto, together with
all merchandise represented by any of the accounts, (ii) all such merchandise
that may be reclaimed or repossessed or returned to any applicable Company,
(iii) all of the Borrower's and the Subsidiary Guarantors' rights as an unpaid
vendor, including stoppage in transit, reclamation, replevin and sequestration,
(iv) all pledged assets and all letters of credit, guarantee claims, Liens, and
security interests held by or granted to the Borrower or any Subsidiary
Guarantor to secure payment of any accounts and which are delivered for or on
behalf of any account debtor, (v) all accessions to all of the foregoing
described properties and interests in properties, (vi) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (vii) all
customer lists and invoices, (viii) all Intangibles to the extent relating to
any of the foregoing, (ix) all Documents to the extent relating to any of the
foregoing and (x) all Proceeds of any of the foregoing.
"Administrative Agent" shall have the meaning set forth in the
Recitals hereto.
-4-
"Availability" shall have the meaning assigned to such term in
the Credit Agreement.
"Blue Steel" shall have the meaning set forth in the Preamble.
"Borrower" shall have the meaning set forth in the Preamble.
"Business Day" shall mean any day (other than a day that is a
Saturday, a Sunday or a legal holiday in the State of New York) on which banks
are open for business in New York City.
"Collateral" shall mean the Credit Agreement Collateral, the
Senior Note Collateral and/or the Shared Collateral, as the case may be.
"Companies" shall have the meaning set forth in the Preamble.
"Copyrights" means, collectively, all of the Borrower's and the
Subsidiary Guarantors' copyrights, whether statutory or common law and whether
presently existing or hereafter arising or acquired, and all applications,
registrations and recordings relating to such copyrights in the United States
Copyright Office or in any similar office or agency of the United States, any
State thereof, any political subdivision thereof or in any other country,
together with any and all (i) rights and privileges arising under applicable law
with respect to the Borrower's or any Subsidiary Guarantor's use of any
copyrights, (ii) reissues, extensions, continuations and renewals thereof, (iii)
income, fees, royalties, damages and payments now and hereafter due and/or
payable with respect thereto, including, without limitation, damages and
payments for past or future infringements thereof, (iv) rights corresponding
thereto throughout the world and (v) rights to xxx for past, present and future
infringements thereof.
"Credit Agreement" shall have the meaning set forth in the
Recitals hereto.
"Credit Agreement Collateral" shall have the meaning given the
term "Collateral" set forth in the Credit Agreement Security Documents,
provided, however, that the term Credit Agreement Collateral as used herein
shall not include the Shared Collateral.
"Credit Agreement Guaranty" shall mean the Guaranty as defined in
the Credit Agreement.
"Credit Agreement Obligations" shall have the meaning given the
term "Obligations" in the Credit Agreement.
"Credit Agreement Parties" shall have the meaning set forth in
the Recitals hereto.
"Credit Agreement Security Documents" shall have the meaning
given the term "Security Documents" in the Credit Agreement.
-5-
"Documents" means, collectively, all of the Borrower's and
Subsidiary Guarantors' now owned or hereafter acquired "documents," as such term
is defined in the UCC, relating to any item or type of Collateral, and shall
also include, without limitation, any and all lists, books, records, ledgers,
printouts, computer programs, computer disks or tape files, computer runs and
other computer prepared information, files (whether in printed form or stored
electronically), tapes and other papers or materials containing information to
the extent relating to any item or type of Collateral.
"Enforcement" shall mean, collectively or individually, to make
demand for payment or accelerate the Indebtedness of the Borrower or any other
Company (other than any acceleration which may occur automatically upon the
filing of a bankruptcy petition), repossess any collateral or commence the
judicial or other enforcement of any of the rights and remedies under any of the
Senior Credit Documents or the Security Documents.
"Enforcement Notice" shall mean a written notice delivered by any
Secured Party to the other Secured Parties, stating that an Event of Default (as
defined herein) has occurred and that the Secured Party delivering such notice
intends to realize upon its security interest in all or any portion of the
Collateral to which it is entitled. An Enforcement Notice shall be deemed to
have been given when the Enforcement Notice has been sent to the other Secured
Parties by certified U.S. mail, return receipt requested, and to have been
rescinded when the other Secured Parties have received satisfactory evidence
that such Event of Default has been cured or when such Event of Default has been
effectively waived for purposes of this Agreement. An Enforcement Notice shall
be deemed to be outstanding at all times after such Notice has been given until
such time, if any, as such Notice has been rescinded.
"Event of Default" shall mean any "Event of Default" as defined
in the Credit Agreement and any "Event of Default" as defined in the Indenture.
"Goodwill" means all goodwill connected with the use of, and
symbolized by, any of the Copyrights, Patents, Trademarks and Licenses.
"Guarantees" shall mean, collectively, the Credit Agreement,
Guaranty and the Indenture Guaranty.
"Indemnitees" shall have the meaning set forth in Article V.
"Indenture Pledge Agreement" shall have the meaning set forth in
the Recitals hereto.
"Indenture Guarantee" shall mean the Guarantee as defined in the
Indenture.
"Indenture Trustee" shall have the meaning set forth in the
Recitals hereto.
"Indentures" shall have the meaning set forth in the Recitals
hereto.
"Intangibles" shall mean, collectively, all of the Borrower's and
Subsidiary Guarantors' presently existing or hereafter arising or acquired
"general intangibles," as such term is defined in the UCC, relating to any item
or type of Collateral, and, in any event, shall
-6-
include, without limitation, any and all contract rights, goodwill (other than
Goodwill), descriptions, name plates, claims, choses-in-action, causes of
action, catalogs, confidential information, consulting agreements, engineering
contracts, and such other assets which relate to the goodwill (other than
Goodwill) of the business of the Borrower or any Subsidiary Guarantor and rights
to refund or indemnification to the extent the foregoing relate to any item or
type of Collateral, deposits and deposit accounts, letters of credit, documents,
instruments, chattel paper, banker's acceptances and guarantees, and income tax
refunds to the extent relating to any item or type of Collateral, claims for tax
or other refunds against any city, county or state or federal government, or any
agency or authority or other subdivision thereof relating to any item or type of
Collateral, corporate or other business records relating to any item or type of
Collateral, and all other general intangibles of every kind and description
relating to any item or type of Collateral.
"Intellectual Property" means, collectively, (i) all Copyrights,
Patents, Trademarks, Licenses and Goodwill, (ii) all Intangibles to the extent
relating to any of the foregoing, (iii) all Documents to the extent relating to
any of the foregoing, and (iv) all Proceeds of any of the foregoing.
"Inventory" shall mean, collectively, all now owned or hereafter
acquired "inventory" (as such term is defined in the UCC) of the Borrower and
the Subsidiary Guarantors wherever located, and, in any event, shall include,
without limitation, (i) all goods, merchandise, raw materials, supplies (other
than supplies which would constitute spare parts), work-in-process and finished
goods intended for sale or lease, of every kind and description now or at any
time hereafter owned by the Borrower or any Subsidiary Guarantor, together with
all the containers, packing, packaging, shipping and similar materials related
thereto, and including such inventory as is temporarily out of the Borrower's or
any Subsidiary Guarantor's custody or possession and items in transit and
including any returns and repossessions upon any accounts, documents,
instruments or chattel paper relating to or arising from the sale of inventory
(as such documents, instruments or chattel paper relate to the sale of such
inventory) and including, without limitation, all other classes of merchandise,
materials, parts, supplies, work-in-process, inventories and finished products
intended for sale by the Borrower and the Subsidiary Guarantors and all
substitutions therefor or replacements thereof, and all additions and accessions
thereto, (ii) all Intangibles to the extent relating to any of the foregoing,
(iii) all Documents to the extent relating to any of the foregoing and (iv) all
Proceeds of any of the foregoing.
"Issuers" shall have the meaning set forth in the Recitals
hereto.
"Lenders" shall have the meaning set forth in the Recitals
hereto.
"Licenses" means, collectively, all of the Borrower's and
Subsidiary Guarantors' presently existing or hereafter arising or acquired
license and distribution agreements with any other party with respect to a
Patent, Trademark or Copyright, whether the Borrower or such Subsidiary
Guarantor is a licensor or licensee, distributor or distributee under any such
license or distribution agreement, along with any and all (i) renewals,
extensions, supplements and continuations thereof, (ii) income, royalties,
damages and payments now and hereafter due and/or payable to the Borrower or
such Subsidiary Guarantor with respect thereto, including,
-7-
without limitation, damages and payments for past or future infringements or
violations thereof and (iii) rights to xxx for past, present and future
infringements or violations thereof.
"Majority Noteholders" means, at any time, holders at such time
of a majority by principal amount of the issued and outstanding Senior Notes
under the Indenture.
"Melt Shop" shall have the meaning set forth in Section 2.02(a).
"Obligations" shall mean collectively the Credit Agreement
Obligations and the Senior Note Obligations.
"Outstanding Credit Agreement Obligations" shall mean, at any
time, the sum (without duplication) of (i) the aggregate principal amount of the
Revolving Credit Loans at such time and the aggregate amount of accrued and
unpaid interest thereon at such time, (ii) any Unfunded L/C Exposure, (iii) the
aggregate amount of all Letters of Credit not yet reimbursed to the Lenders and
accrued and unpaid interest thereon at such time, (iv) the aggregate amount of
all other monetary obligations that are accrued and owing at such time to the
Credit Agreement Parties or any of them under the Credit Agreement, the Security
Documents and the Guarantees, including fees, costs, expenses, indemnities and
premiums, if any, (v) the aggregate amount of all monetary obligations of the
Companies at such time under all Rate Protection Agreements entered into with
any counterparty that was a Lender at the time such Rate Protection Agreement
was entered into, and (vi) all indebtedness, obligations and liabilities of the
Companies in connection with cash management services provided by the
Administrative Agent or Fleet National Bank.
"Outstanding Obligations" shall mean, at any time, the sum of (i)
the Outstanding Credit Agreement Obligations at such time and (ii) the
Outstanding Senior Note Obligations at such time.
"Outstanding Senior Note Obligations" shall mean, at any time,
the sum (without duplication) of (i) the aggregate principal amount of the
outstanding Senior Notes at such time and the aggregate amount of accrued and
unpaid interest thereon at such time and (ii) the aggregate amount of all other
monetary obligations that are accrued and owing at such time to the Senior Note
Creditors or any of them under the Indenture, the Security Documents and
Guarantees, including fees, costs, expenses, indemnities and premiums, if any.
"Patents" shall mean, collectively, all of the Borrower's and
Subsidiary Guarantors' patents and all applications, registrations and
recordings relating thereto as may at any time be filed in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof, any political subdivision thereof or in any other
country, together with any and all (i) rights and privileges arising under
applicable law with respect to the Borrower or such Subsidiary Guarantor's use
of any patents, (ii) inventions and improvements described and claimed therein,
(iii) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, (iv) income, fees, royalties, damages and
payments for past or future infringements thereof, (v) rights corresponding
thereto throughout the world and (vi) rights to xxx for past, present and future
infringements thereof.
"Pledge Agreement" shall have the meaning set forth in the
Recitals hereto.
-8-
"Proceeds" shall have the meaning assigned to the term "proceeds"
under the UCC and, in any event, shall include, without limitation, any and all
(i) proceeds of any insurance (except payments made to a person that is not a
party to this Agreement), (ii) indemnity, warranty, guarantee or claim payable
to the Indenture Trustee, the Administrative Agent, the Borrower or any
Subsidiary Guarantor, as the case may be, from time to time with respect to any
item or type of Collateral, (ii) payments (in any form whatsoever) made or due
and payable to the Borrower or any Subsidiary Guarantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of any item or type of Collateral by any
governmental authority (or any person acting under color of a governmental
authority), (iii) products of any item or type of Collateral, and (iv) other
amounts from time to time paid or payable under or in connection with any item
or type of Collateral.
"Required Lenders" shall mean the "Majority Lenders" (as such
term is defined in the Credit Agreement).
"RTI" shall have the meaning set forth in the Recitals hereto.
"Secured Parties" shall mean the Administrative Agent, on behalf
of the Credit Agreement Parties, and the Indenture Trustee, on behalf of the
Senior Note Creditors, and their respective successors and permitted assigns
under the Credit Agreement or the Indenture, as the case may be.
"Security Documents" shall mean the Credit Agreement Security
Documents and the Senior Note Security Documents.
"Senior Credit Documents" shall mean the Credit Agreement, the
Indenture and the Security Documents.
"Senior Notes" shall have the meaning set forth in the Recitals
hereto.
"Senior Note Collateral" shall have the meaning given the term
"Collateral" set forth in the Senior Note Security Documents, provided, however,
that the term Senior Note Collateral as used herein shall not include the Shared
Collateral.
"Senior Note Collateral Account" shall have the meaning set forth
in Section 4.01.
"Senior Note Creditors" shall mean the Senior Note Holders and
the Indenture Trustee.
"Senior Note Obligations" shall have the meaning given the term
"Obligations" in the Indenture.
"Senior Note Security Documents" shall have the meaning given the
term "Security Documents" in the Indenture.
-9-
"Senior Noteholders" shall have the meaning set forth in the
Recitals hereto.
"Shared Collateral" shall mean, collectively, (i) all capital
stock, membership interests and/or partnership interests of the Borrower and
each of the Subsidiary Guarantors, together with all rights, privileges,
authority and powers of each such person in and to the equity interests in each
such person or under the membership or partnership agreement of such person and
the certificates, instruments and agreements, if any, representing such
membership or partnership interests, (ii) all issued and outstanding shares of
capital stock of the Borrower and each of the Subsidiary Guarantors, if any,
including the certificates representing such shares and any interest of any such
person in the entries on the books of any financial intermediary pertaining to
such shares, (iii) all additional membership interests, partnership interests
and shares of capital stock (as applicable) of any issuer of the interests and
shares described in clauses (i) and (ii) of this definition from time to time
acquired by any such person in any manner and all membership interests and
partnership interests and issued and outstanding shares of capital stock of each
person which, after the date of this Agreement, is or becomes, as a result of
any occurrence, a Subsidiary Guarantor, including any right relating to the
equity or membership or partnership interests in any such person or under the
membership or partnership agreement of any such person, from time to time
acquired by such person in any manner and the certificates, instruments and
agreements, if any, representing such additional interests, the certificates
representing such additional interests and shares and any interest of any such
person in the entries on the books of any financial intermediary pertaining to
such additional shares, (iv) all dividends, cash, options, warrants, rights,
instruments, distributions, partnership distributions, returns of capital,
income, profits and other property, interests or proceeds from time to time
received, receivable or otherwise distributed to any such person in respect of
or in exchange for any or all of such interests and shares, (v) all Intangibles
to the extent relating to any of the foregoing, (vi) all Documents to the extent
relating to any of the foregoing, and (vii) all Proceeds of any of the
foregoing.
"Trademarks" shall mean, collectively, all of the Borrower's and
Subsidiary Guarantors' trademarks (including service marks), trademark
registrations, trade styles and trade names and applications therefor as may at
any time be filed in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof, any political
subdivision thereof or in any other country, together with any and all (i)
rights and privileges arising under applicable law with respect to the
Borrower's or any Subsidiary Guarantor's use of any trademarks, (ii) reissues,
continuations, extensions and renewals thereof, (iii) income, fees, royalties,
damages and payments now or hereafter due and/or payable under or with respect
thereto, including, without limitation, damages and payments for past or future
infringement thereof, (iv) rights corresponding thereto throughout the world and
(v) rights to xxx for past, present and future infringements thereof.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in any applicable jurisdiction.
SECTION 1.03. Terms Generally. The definitions in Section 1.02
shall apply equally to both 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
-10-
"without limitation". All references herein to Articles and
Sections shall be deemed references to Articles and Sections of this Agreement
unless the context shall otherwise require.
ARTICLE II
REMEDIES
SECTION 2.01. Security Interests.
(a) Each of the Companies and the Administrative Agent, on behalf
of the Credit Agreement Parties, hereby acknowledges that (i) the Indenture
Trustee, for the benefit of the Senior Note Holders, has been granted a security
interest in and lien upon the Senior Note Collateral pursuant to the Senior Note
Security Documents in effect on the date hereof, true and complete copies of
which have been made available to the Administrative Agent, (ii) upon the sale
or other disposition of the Senior Note Collateral pursuant to any of the Senior
Note Security Documents, the Indenture Trustee and the Senior Note Holders shall
be entitled to 100% of the proceeds of such sale or disposition, (iii) the
Administrative Agent and the Credit Agreement Parties have no claim or interest
in such Senior Note Collateral or the proceeds thereof, and (iv) the provisions
of this Agreement shall not restrict the Indenture Trustee and the Senior Note
Holders from commencing Enforcement in respect of any Collateral to which it is
entitled (other than the Shared Collateral).
(b) Each of the Companies and the Indenture Trustee, on behalf of
the Senior Note Holders, hereby acknowledges that (i) the Administrative Agent,
for the benefit of the Credit Agreement Parties, has been granted a security
interest in and lien upon the Credit Agreement Collateral pursuant to the Credit
Agreement Security Documents in effect on the date hereof, true and complete
copies of which have been made available to the Indenture Trustee, (ii) upon the
sale or other disposition of the Credit Agreement Collateral pursuant to any of
the Credit Agreement Security Documents, the Administrative Agent and the Credit
Agreement Parties shall be entitled to 100% of the proceeds of such sale or
disposition, (iii) the Indenture Trustee and the Senior Note Holders have no
claim or interest in such Credit Agreement Collateral or the proceeds thereof,
and (iv) the provisions of this Agreement shall not restrict the Administrative
Agent and the Credit Agreement Parties from commencing Enforcement in respect of
any Collateral to which it is entitled (other than the Shared Collateral).
SECTION 2.02. Access; Use of Intellectual Property.
(a) For up to 210 days following the issuance of any Enforcement
Notice, the Administrative Agent, the Indenture Trustee and the Companies agree
that the Administrative Agent may, at its option, without charge, at any time
(i) enter upon any or all of any of the Companies' premises, either leased or
owned, in order to inspect, collect, remove, sell or otherwise dispose of the
Credit Agreement Collateral to which it is entitled, such right to include,
without limiting the generality of the foregoing, the right to conduct one or
more private sales or auctions thereon, and (ii) use the Senior Note Collateral
to the extent necessary or advisable to complete the manufacture of the
Inventory, collect the Accounts and remove, sell or otherwise dispose of the
Credit Agreement Collateral to which it is entitled; provided,
-11-
however, that access to Senior Note Collateral consisting of blast furnaces or
electric arc furnaces and related melting facilities ("Melt Shops") shall be
limited to 90 days following the issuance of an Enforcement Notice, and provided
further, that the Administrative Agent shall compensate the Indenture Trustee in
cash for any damage to the Senior Note Collateral used by the Administrative
Agent in connection with its entry into and use of the Senior Note Collateral as
contemplated by this Section 2.02 and shall pay, as incurred, all of the costs
and expenses relating to the provision of access to the Senior Note Collateral
as contemplated herein, and provided, further, that upon the request of the
Administrative Agent, the Companies shall provide evidence of all such costs and
expenses to the Administrative Agent. During such 210-day period, if the
Administrative Agent has entered upon any Company's premises as provided herein,
the Indenture Trustee and its designees shall have unrestricted access to the
Senior Note Collateral for the purpose of evaluating the Senior Note Collateral
and showing it to potential purchasers and preparing such for sale or selling
such Senior Note Collateral; provided, however, that, without creating any right
hereunder in favor of any Company, the access of the Indenture Trustee and its
designees shall not unreasonably and materially interfere with the access of the
Administrative Agent and use of such Company's premises and use of the Senior
Note Collateral to the extent necessary or advisable to complete the manufacture
of the Inventory, collect the Accounts and to sell or otherwise dispose of the
Credit Agreement Collateral to which it is entitled.
(b) Following the issuance of any Enforcement Notice, the
Administrative Agent, the Indenture Trustee and the Companies agree that the
Administrative Agent, the Indenture Trustee and the Companies shall have a
perpetual license to use the Intellectual Property, without charge, to the
extent necessary or advisable to conduct the Borrower's business in the ordinary
course consistent with past practice and to sell or otherwise dispose of the
Collateral to which it is entitled and any sale of the Intellectual Property
shall be made subject to such perpetual license. To the extent any Company, the
Administrative Agent or the Indenture Trustee has elected to use the
Intellectual Property, such use by such person and its designees shall not
unreasonably and materially interfere with the use by the Administrative Agent
or the Indenture Trustee of the Intellectual Property to the extent necessary or
advisable to complete the manufacture of the Inventory, collect the Accounts and
to sell or otherwise dispose of the Credit Agreement Collateral. If the
Administrative Agent fails to timely pay the costs and expenses pursuant to this
Section 2.02, its right of access hereunder shall terminate.
ARTICLE III
EXPENSES AND INDEMNIFICATION BY COMPANIES
By countersigning this Agreement, the Companies agree (i) to
reimburse each of the Administrative Agent and the Indenture Trustee, on demand,
for any reasonable expenses incurred by such person, including reasonable (1)
counsel fees, (2) other charges and (3) disbursements and compensation of
agents, arising out of, in any way connected with, or as a result of, the
execution or delivery of this Agreement or any of the Security Documents or any
agreement or instrument contemplated hereby or thereby or the performance by the
parties hereto or thereto of their respective obligations hereunder or
thereunder or in connection with the enforcement or protection of the rights of
the Administrative Agent, the Indenture Trustee and the Secured Parties under
this Agreement and the Security Documents and (ii) to
-12-
indemnify and hold harmless the Administrative Agent and the Indenture Trustee
and each of their respective directors, officers, employees and agents (each
such person being called an "Indemnitee"), on demand, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent and
the Indenture Trustee in their respective capacities, or the Majority Holders,
or any of them in any way relating to or arising out of this Agreement or the
Security Documents or any action taken or omitted by them under this Agreement
or the Security Documents; provided, however, that the Companies shall not be
liable to any Indemnitee for any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent they have resulted from the gross negligence or willful misconduct of
such Indemnitee.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Administrative Agent and the Indenture Trustee
represents and warrants to the other parties hereto that (i) the execution,
delivery and performance of this Agreement (1) have been duly authorized by all
requisite corporate action on its part and (2) will not contravene any provision
of its charter or by-laws or any order of any court or other Governmental
Authority having applicability to it or any applicable law and (ii) this
Agreement has been duly executed and delivered by it and constitutes its legal,
valid and binding obligation.
ARTICLE V
APPROVAL BY THE COMPANIES
By executing this Agreement, each of the Companies agrees to be
bound by the provisions hereof as they relate to the relative rights of the
Secured Parties; provided, however, that solely as between each of the
Companies, on the one hand, and the Secured Parties, on the other hand, nothing
in this Agreement shall amend, modify, change or supersede the terms of any
Security Document, as between each Secured Party and Company signatory thereto,
and in the event of any such conflict or inconsistency between the terms of this
Agreement and such Security Document, such Security Document shall govern the
relationship between such Secured Party and Company. Each Company further agrees
that except as expressly provided herein (i) the terms of this Agreement shall
not give such Company any substantive rights against the Secured Parties, and
(ii) if any Secured Party shall enforce its rights or remedies in violation of
the terms of this Agreement, such Company shall neither raise such violation as
a defense to the enforcement by any other Secured party under its respective
Security Documents, nor assert such violation as a counterclaim or basis for
setoff or recoupment against any Secured Party.
ARTICLE VI
MISCELLANEOUS
-13-
SECTION 6.01. Further Assurances, etc. Each party hereto shall
execute and deliver such other documents and instruments, in form and substance
reasonably satisfactory to the other parties hereto, and shall take such other
actions, in each case as any other party hereto may reasonably have requested
(at the cost and expense of the Companies) to effectuate and carry out the
provisions of this Agreement, including by recording or filing in such places as
the requesting party may deem reasonably necessary, this Agreement or such other
documents or instruments
SECTION 6.02. Successors and Assigns. (a) This Agreement shall be
binding on and inure to the benefit of each of the Secured Parties and their
respective successors and permitted assigns (including any assignee of any
Lender in accordance with the Credit Agreement and the holders from time to time
of the Senior Notes); provided, however, that, except as provided in the next
sentence, no Credit Agreement Party or Senior Note Creditor may assign its
rights or obligations hereunder. The rights and obligations of any Credit
Agreement Party or Senior Note Creditor under this Agreement shall be assigned
automatically, without the need for the execution of any document or any other
action, to, and the terms "Credit Agreement Party" or "Senior Note Creditor" as
used in this Agreement shall include, any assignee, transferee or successor of
such Secured Party under the Credit Agreement or the Indenture, as the case may
be, in accordance with the terms of and upon the effectiveness of an assignment
pursuant to Section 19 of the Credit Agreement or a transfer of Senior Notes
pursuant to Section 2.6 of the Indenture, provided in the event that the Secured
Party under the Credit Agreement is a trustee for parties to a securitization or
similar structured financing which has refinanced the Credit Agreement, such
trustees shall have provided reasonable evidence of means of payment acceptable
to the Majority Holders of the required costs and expenses of access provided to
be paid in connection with the provision of access to the Secured Note
Collateral as provided in Section 2.02 hereof and failure to pay such costs and
expenses in a timely manner shall terminate the obligation to provide access to
the property. Except as specifically set forth above and in paragraph (b) below,
this Agreement is not intended to confer any benefit on, or create any
obligation of any Secured Party to, any of the Companies or any third party.
(b) The provisions of Section 7.03 (and the provisions of this
paragraph (b) and clause (c) of Section 9.06) are intended to confer a benefit
upon the Companies shall be enforceable by the Companies.
SECTION 6.03. Notices. All notices and other communications
provided for herein shall (except as otherwise expressly permitted herein) be in
writing and given as provided in the Credit Agreement or the Indenture. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt if delivered by hand or overnight courier service or sent by telecopy
or on the date five (5) Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to
such party at the address set forth beneath its signature hereto or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.03.
SECTION 6.04. Termination. (a) This Agreement shall terminate
automatically upon the indefeasible payment in full of the Outstanding Credit
Agreement Obligations or the Outstanding Senior Note Obligations; this Section
6.04, Article III of this Agreement shall
survive, and remain operative and in full force and effect, regardless of the
termination of this Agreement.
SECTION 6.05. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.06. Modification of Agreement. No modification or
amendment of any provision of this Agreement shall in any event be effective
unless the same shall be in writing and signed by or on behalf of the Required
Lenders and the Majority Noteholders. No waiver of any provision of this
Agreement and no consent to any departure by any party hereto from the
provisions hereof shall be effective unless such waiver or consent shall be set
forth in a written instrument executed by the party against which it is sought
to be enforced, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any party hereto in any case shall entitle such party to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 6.07. Waiver of Rights. Neither any failure nor any delay
on the part of any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, and a single or partial exercise
thereof shall not preclude any other or further exercise or the exercise of any
other right, power or privilege.
SECTION 6.08. Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties hereto 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 6.09. Counterparts. 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 instrument. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 6.10. Section Headings. The Article and Section headings
used herein are for convenience of reference only and are not to affect the
construction of or be taken into consideration in interpreting this Agreement.
SECTION 6.11. Complete Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior representations, negotiations, writings,
memoranda and agreements. To the extent any provision of this Agreement
conflicts with any other Senior Credit Document, the provisions of this
Agreement shall be controlling, except as otherwise required by law.
IN WITNESS WHEREOF, the Administrative Agent and the Indenture
Trustee have caused this Intercreditor Agreement to be duly executed by their
duly authorized officers, all as of the day and year first above written.
LASALLE BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Power of Attorney
Address:
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
Address: Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Signature Page to
Intercreditor Agreement
REPUBLIC ENGINEERED PRODUCTS LLC
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
BLUE BAR, L.P.
By: Blue Steel Corporation
Its General Partner
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
BLUE STEEL CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice Preisent
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
N&T RAILWAY COMPANY LLC
By: Republic Engineered Products LLC
Its Sole Member
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
