FIRST AMENDMENT TO COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
Exhibit 10.13
FIRST AMENDMENT TO
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
THIS FIRST AMENDMENT TO COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this
“Amendment”), dated as of January 2, 2008, is by and among: (i) Bank of America, N.A. (in
its individual capacity herein referred to as the “Collateral Agent Bank” and in its
capacity as collateral agent herein referred to as the “Collateral Agent”), (ii) Bank of
America, N.A., a national banking association, as U.S. Agent under the Bank Credit Agreement for
the Bank Credit Agreement U.S. Lenders, (iii) The Prudential Insurance Company of America and
Prudential Retirement Insurance and Annuity Company (together with their respective successors and
assigns as Holders of Notes, the “Noteholders”), (iv) The Northern Trust Company, an
Illinois banking corporation, as party to a Trade Agreement (together with its successors and
assigns, “Northern”), (v) A. M. Castle & Co., a Maryland corporation (together with its
successors and assigns, the “Company”) and (vi) the Guarantors party hereto.
1. The Collateral Agent, the U.S. Agent, the Noteholders, Northern, the Company and the
Guarantors entered into that certain Amended and Restated Collateral Agency and Intercreditor
Agreement dated as of September 5, 2006 (the “Intercreditor Agreement”). Capitalized terms
used herein which are not defined herein and which are defined in the Intercreditor Agreement shall
have the same meanings as therein defined.
2. The parties have agreed to amend the Intercreditor Agreement as set forth herein.
1. Amendments to the Intercreditor Agreement. Effective upon satisfaction of the
conditions precedent set forth in Section 2 below, the Intercreditor Agreement is hereby amended as
follows:
(A) Section 1. The following definitions in Section 1 are hereby amended to
read as follows:
Principal Obligations. Shall mean Note Principal Obligations in an
amount not to exceed $75,000,000, the outstanding principal amount of Bank Credit
Agreement Debt (exclusive of Bank Credit Agreement Swap Obligations and Bank Credit
Agreement Treasury Management Obligations) in an amount not to exceed $240,000,000
and the outstanding principal amount of Trade Agreement Debt in an amount not to
exceed $10,000,000, and the outstanding principal amount of all Additional Future
Debt.
(B) Section 1.1. The definition of “U.K. Borrower” is hereby added to Section
1 of the Intercreditor Agreement in the appropriate alphabetical order to read as follows:
(C) Section 1.1. The definition of “Stock Pledge Agreement” is hereby deleted
from Section 1 of the Intercreditor Agreement.
(D) Section 4.3. Section 4.3 of the Intercreditor Agreement is hereby amended
to read as follows:
4.3 Additional Collateral. Each of U.S. Agent, each Noteholder,
Northern and each holder of Additional Future Debt hereby covenants and agrees that
it will not take, hold or suffer to exist any security interest in or Lien on any
assets as security for any of the Secured Obligations unless such security interest
or Lien is granted in favor of, or otherwise made available to, the Collateral Agent
for the benefit of U.S. Agent, the Noteholders, Northern and the holders of
Additional Future Debt as contemplated by this Agreement. Notwithstanding anything
contained herein, the U.S. Agent shall be permitted to take a security interest in
and a Lien on the assets of the U.K. Borrower and its Subsidiaries as security for
the obligations owing by such Persons under the Bank Credit Agreement Documents and
the U.S. Agent shall not be required to make such security interest and Lien
available to the Collateral Agent for the benefit of the Noteholders, Northern or
the holders of any Additional Future Debt.
(E) Section 4.11. A new Section 4.11 is hereby added to the Intercreditor
Agreement is hereby amended to read as follows:
30.3 Special Provisions Regarding Recoveries from the U.K. Borrower and its
Subsidiaries. If any Secured Party receives any payment from, or proceeds of
security interests in assets pledged for the benefit of such Secured Party by, the
U.K. Borrower or any of its Subsidiaries (a “U.K. Recovery”) at any time after any
amounts on account of the Secured Obligations have been received or recovered from
the Company, the Guarantors or the Collateral and have been distributed to the
Secured Parties in accordance with Section 4.1(b) or Section 4.2 (a
“Section 4.1 Distribution”), then the Collateral Agent shall recalculate (a
“Recalculation”) the proportionate shares of each Secured Creditor (as contemplated
by Section 4.1(b)) in the assets distributed pursuant to such Section 4.1
Distribution assuming that the U.K. Recovery had occurred immediately prior to such
Section 4.1 Distribution. If as a result of any Recalculation, and after taking
into account any prior Recalculations, any Secured Party has received an amount in
excess of the amount it would have received under Section 4.1(b) or
Section 4.2 if such U.K. Recovery had occurred immediately prior to such
Section 4.1 Distribution, such Secured Party will pay over to the other Secured
Parties such amount as shall result in each Secured Party receiving in respect of
the Secured Obligations owing to it its proportionate payment as contemplated by
Section 4.1(b) or Section 4.2, as the case may be, after giving
effect to the Recalculation; provided that if all or any part of such excess
payment is thereafter recovered from such Secured Party, such payment shall be
rescinded and the amount returned to the extent of such recovery, but without
interest.
(F) Section 13.3. Section 13.3(b) of the Intercreditor Agreement is hereby
amended to read as follows:
(b) No Secured Party may sell any Secured Obligation or any interest therein to
any Affiliate of the Company (other than a sale which constitutes a payment under a
Guaranty after an Event of Default), or accept any payment of a Secured Obligation
from an Affiliate of the Company (other than payments under a Guaranty after an
Event of Default), without the consent of the Majority Secured Parties;
provided, however, that the U.S. Agent and Bank Credit Agreement
U.S. Lenders may accept payments by the U.K. Borrower and/or its Subsidiaries of
obligations owing by such Persons under the Bank Credit Agreement Documents at any
time.
2. Conditions Precedent. This Amendment shall become effective upon receipt by the
Collateral Agent of counterparts of this Amendment duly executed by the Collateral Agent, the
Majority Secured Parties, the Company and the Guarantors.
COLLATERAL AGENT: | BANK OF AMERICA, N.A. | |||||
By: Name: |
/s/Xxxxxxx Xxxxxxxx
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Title: | Vice President | |||||
SECURED PARTIES: | BANK OF AMERICA, N.A., | |||||
as U.S. Agent | ||||||
By: Name: |
/s/Xxxxxxx Xxxxxxxx
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Title: | Vice President | |||||
THE NORTHERN TRUST COMPANY | ||||||
By: Name: |
/s/Xxxxx Xxxxxx
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Title: | Vice President | |||||
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA | ||||||
By: Name: |
/s/ G. Xxxxxxx Xxxxxxx
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Title: | Vice President | |||||
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY | ||||||
By: Name: |
/s/ G. Xxxxxxx Xxxxxxx
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Title: | Vice President | |||||
COMPANY: | A.M. CASTLE & CO. | |||||
By: Name: |
/s/ Xxxxxxx X. Xxxxxxxx
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Title: | President and Chief Executive Officer | |||||
GUARANTORS: | DATAMET, INC. | |||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President, Treasurer and Assistant Secretary |
KEYSTONE TUBE COMPANY, LLC | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
TOTAL PLASTICS, INC. | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
PARAMONT MACHINE COMPANY, LLC | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
ADVANCED FABRICATING TECHNOLOGY, LLC | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
XXXXXX STEEL PLATE CO. | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Treasurer | |||||
TRANSTAR INVENTORY CORP. | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
TRANSTAR METALS CORP. | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President | |||||
TRANSTAR MARINE CORP. | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxx
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Title: | Vice President |