EXHIBIT 4.5
PLEDGE INTERCREDITOR AGREEMENT
PLEDGE 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, a national banking
association, acting in its capacity as Indenture Trustee (as hereinafter
defined) and as 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:
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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").
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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 Section 7.01 and any remedies taken by any
Secured Party in connection therewith shall be subject to the provisions of
Article III of this 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
with 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
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RTI Notes and the relevant Indenture Trustee are preserved and are not adversely
affected hereby.
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:
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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:
"Administrative Agent" shall have the meaning set forth in the
Recitals hereto.
"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.
"Collateral Accounts" shall have the meaning set forth in Section
4.01.
"Companies" shall have the meaning set forth in the Preamble.
"Credit Agreement" shall have the meaning set forth in the Recitals
hereto.
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"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 Collateral Account" shall have the meaning set forth
in Section 4.01.
"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.
"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.
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"Guarantees" shall mean, collectively, the Credit Agreement Guaranty
and the Indenture Guarantee.
"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" 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 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.
"Issuers" shall have the meaning set forth in the Recitals hereto.
"Lenders" shall have the meaning set forth in the Recitals hereto.
"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.
"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
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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, premiums, and
enforcement costs of the Majority Noteholders if any.
"Permitted Investments" shall mean (i) direct obligations of the
United States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof; (ii) time deposit accounts,
certificates of deposit and money market deposits maturing within 180 days of
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt, or whose parent
holding company's long-term debt, is rated A (or such similar equivalent rating)
or higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act of 1933, as amended); (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above; (iv) commercial
paper, maturing not more than 180 days after the date of acquisition, issued by
a corporation (other than an affiliate of the Borrower) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which
any investment therein is made of P-1 (or higher) according to Xxxxx'x Investors
Services, Inc. ("Moody's"), or A-1 (or higher) according to Standard & Poor's
Ratings Group ("S&P"); (v) securities with maturities of six months or less from
the date of acquisition issued or fully guaranteed by an state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least A by S&P or A by Moody's; (vi)
mutual funds whose investment guidelines restrict such funds' investments to
those satisfying the provisions of clauses (i) through (v) above; and (vii) time
deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 1/2 of 1% of total assets of the
Companies, on a consolidated basis, as of the end of the Borrower's most
recently completed fiscal year.
"Pledge Agreement" shall have the meaning set forth in the Recitals
hereto.
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"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.
"Reimbursement Obligations" shall have the meaning set forth in
Section 4.01.
"Required Lenders" shall mean the "Majority Lenders" (as such term is
defined in the Credit Agreement).
"Required Secured Parties" shall mean the holders of Voting
Obligations representing at least a majority of the Voting Obligations.
"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 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.
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"Senior Noteholders" shall have the meaning set forth in the Recitals
hereto.
"Senior Notes" 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.
"Unfunded L/C Exposure" shall mean, at any time, the aggregate undrawn
amount of all outstanding Letters of Credit at such time.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in any applicable jurisdiction.
"Voting Actions" shall mean all amendments and modifications to, and
waivers of any provisions of, and consents granted under this Agreement and the
Pledge Agreements.
"Voting Credit Agreement Obligations" shall mean, at any time (without
duplication), (i) the aggregate principal amount of the Revolving Credit Loans
outstanding at such time, (ii) the Unfunded L/C Exposure at such time, (iii) the
aggregate amount of unreimbursed disbursements under Letters of Credit ("L/C
Disbursements") and (iv) the aggregate principal amount of funds available to
the Borrower under the Credit Agreement at such time; provided, however, that
the amount referred to in clause (iv) above shall not include any portion of
such available amount that is not made available to the Borrower by the Lenders
as a result of a failure of a condition to borrowing under the Credit Agreement,
except to the extent such failure is waived by the Lenders.
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"Voting Obligations" shall mean the Voting Credit Agreement
Obligations and the Voting Senior Note Obligations.
"Voting Senior Note Obligations" shall mean, at any time, the
aggregate principal amount of the outstanding Senior Notes at such time.
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 "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
ACTS OF SECURED PARTIES; AMOUNTS OF OBLIGATIONS
SECTION 2.01. Acts of Secured Parties. Any request, demand,
authorization, direction, notice, consent, waiver or other action permitted or
required by this Agreement to be given or taken by the Secured Parties or any
portion thereof (including the Required Secured Parties) may be and, at the
request of either the Administrative Agent or the Indenture Trustee, shall be
embodied in and evidenced by one or more written instruments reasonably
satisfactory in form to the Administrative Agent or the Indenture Trustee, as
the case may be, and signed by or on behalf of such persons and, except as
otherwise expressly provided in any such instrument, any such action shall
become effective when such instrument or instruments shall have been delivered
to the Administrative Agent and the Indenture Trustee. The instrument or
instruments evidencing any action (and the action embodied therein and evidenced
thereby) are sometimes referred to herein as an "Act" of the persons signing
such instrument or instruments. Each of the Administrative Agent and the
Indenture Trustee shall be entitled to rely absolutely upon an Act of any other
Secured Party if such Act purports to be taken by or on behalf of such Secured
Party, and nothing in this Section 2.01 or elsewhere in this Agreement shall be
construed to require any Secured Party to demonstrate that it has been
authorized to take any action that it purports to be taking, the Administrative
Agent and the Indenture Trustee being entitled to rely conclusively, and being
fully protected in so relying, on any Act of such Secured Party.
SECTION 2.02. Determination of Amounts of Obligations. Each of the
Administrative Agent and the Indenture Trustee agrees to provide to any Secured
Party such information, reasonably available to the Administrative Agent or the
Indenture Trustee, as the case may be, as such Secured Party may reasonably
request for purposes of determinations to be made under this Agreement,
including information with respect to Outstanding Obligations, Voting
Obligations and matters provided for in Article IV, including, without
limitation, periodic accountings as to amounts in each of the Collateral
Accounts.
SECTION 2.03. Restrictions on Actions. Each Secured Party agrees that,
as long as any Outstanding Obligations exist, the provisions of this Agreement
shall provide the exclusive method by which any Secured Party may exercise any
Enforcement under or with
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respect to the Shared Collateral and the Pledge Agreement to which it is a
party. Therefore, each Secured Party shall, for the mutual benefit of all
Secured Parties, except as permitted under this Agreement:
(a) refrain from taking or filing any action, judicial or otherwise,
to enforce any rights or pursue any remedies under the Pledge Agreement to which
it is a party, except for delivering notices hereunder; and
(b) refrain from exercising any rights or remedies under the Pledge
Agreement to which it is a party that may be exercisable as a result of an Event
of Default;
provided, however, that the foregoing shall not prevent (i) any
Secured Party from imposing a default rate of interest in accordance with the
Credit Agreement or the Indenture, as applicable, (ii) any Secured Party from
raising any defenses in any action in which it has been made a party defendant
or has been joined as a third party, (iii) any Secured Party from exercising its
rights and remedies as a general creditor in accordance with the Senior Credit
Documents and applicable law, including the right to commence legal proceedings
to collect any Outstanding Obligation due and payable to such Secured Party and
remaining unpaid, to obtain a judgment and to enforce such judgment, in each
case to the same extent as if such Secured Party were an unsecured creditor, or
(iv) any Secured Party as a secured creditor from taking or filing any action or
exercising any rights or remedies with respect to any Collateral to which it is
entitled (other than the Shared Collateral). For the avoidance of doubt, each
Secured Party shall be free to act in any respect provided for under the Senior
Credit Documents to which it is a party and pursuant to applicable law and
principles of equity with respect to its Collateral not constituting Shared
Collateral.
ARTICLE III
REMEDIES
SECTION 3.01. 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
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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 3.02. Actions Under Pledge Agreements.
(a) Upon the occurrence and during the continuance of an Event of
Default under the applicable Senior Credit Documents, each Secured Party shall
have the non-exclusive right to deliver an Enforcement Notice in respect of the
Shared Collateral to the other Secured Parties. After delivery of such
Enforcement Notice, the other Secured Parties shall have the right to join in
such Enforcement in respect of the Shared Collateral and to participate in the
management, exercise and performance of such Enforcement, in each case, subject
to Section 3.02(b). To the extent such Enforcement is not joined in by such
other Secured Parties, the Secured Party that sent the Enforcement Notice may
commence Enforcement in respect of the Shared Collateral following the
expiration of a 30 day period in which the Secured Parties attempt to reach
agreement as to a joint Enforcement, and direct the management, exercise and
performance of such Enforcement, subject to the provisions of Section 3.02(b).
Any Secured Party commencing Enforcement in respect of the Shared Collateral
pursuant to this Section 3.02(a) shall use reasonable judgment and efforts to
maximize the proceeds from such Enforcement for the benefit of the Secured
Parties and each holder of Outstanding Obligations and shall pursue Enforcement
in a commercially reasonable, expeditious manner. All actions by the Secured
Parties pursuant to this Section 3.02(a) shall be subject to the provisions of
Sections 3.02(b) and 7.02.
(b) Following the delivery of an Enforcement Notice, the Secured Party
commencing Enforcement shall notify the other Secured Parties of its intended
enforcement actions at least 10 days prior to taking any such actions. In the
event such Secured Party (or its nominee) wishes to assume voting control of the
entities whose equity constitutes Shared Collateral (or any of them), then such
voting control shall be allocated to the Secured Parties based on the respective
Outstanding Voting Obligations, and any election of members of boards of
directors or similar governing bodies shall be effected such that each Secured
Party shall have the right to elect such number of directors as bears the same
proportion to the total number of directors of such entities as the Voting
Obligations of such Secured Party bears to the total Voting Obligations
(rounding to the nearest whole number, rounding upward if the fraction is 1/2).
In the event such Secured Party (or its nominee) wishes to sell such equity
interests, at auction or otherwise, the other Secured Parties shall have
approved the sale in their reasonable discretion or the Senior Note Obligations
(in the case of Enforcement and sale directed by the Administrative Agent) or
the Credit Agreement Obligations (in the case of Enforcement and sale directed
by the Indenture Trustee) shall have been repaid in full in connection with and
simultaneously with such sale, otherwise such non consenting Secured Party shall
have the right to object to such sale in any action or proceeding, and provided
that
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any such dispute as to any sale shall be resolved by a court of competent
jurisdiction. Each of the Administrative Agent and the Indenture Trustee may
take, but shall have no obligation to take, any and all such actions under the
Pledge Agreement to which it is a party, or otherwise as it shall deem to be in
the best interests of the Secured Parties in order to maintain the Shared
Collateral and protect and preserve such Shared Collateral and the rights of the
Secured Parties; provided, however, that in the absence of written approval
(which may relate to the exercise of specific remedies or to the exercise of
remedies in general) from the other Secured Parties, neither the Administrative
Agent nor the Indenture Trustee shall take action to foreclose any Lien on such
Shared Collateral or exercise any other remedies available to it under the
Lender Pledge Agreement or the Indenture Pledge Agreement, as applicable, with
respect to such Shared Collateral or any part thereof in a manner requiring such
approval or consent hereunder.
SECTION 3.03. Meetings, Voting. (a) Following the delivery of an
Enforcement Notice in respect of the Shared Collateral, upon the request of any
Secured Party, the parties shall schedule a meeting of all Secured Parties to be
held at a location in any of New York, New York, Boston, Massachusetts or
Chicago, Illinois, such location to be agreed upon between the Secured Parties,
and any Secured Party may participate via telephone. Without limiting Section
3.01(a), at such meeting the Secured Parties shall consult with one another in
an attempt to determine a mutually acceptable course of conduct regarding the
Companies, the collection of the Outstanding Obligations and the exercise of
rights and remedies under the Pledge Agreements.
(b) In the event that it is necessary to take any Voting Action in
respect of the Shared Collateral, the Administrative Agent or the Indenture
Trustee, as applicable, shall (i) notify each Credit Agreement Party and Senior
Note Creditor entitled to participate in such proposed Voting Action, (ii)
collect instructions from such Credit Agreement Parties and Senior Note
Creditors regarding such Voting Action and (iii) notify all Credit Agreement
Parties and Senior Note Creditors of the results of such Voting Action.
SECTION 3.04. Records. Each Secured Party shall maintain records
regarding Voting Actions, determinations of the amounts of the Outstanding
Obligations and Voting Obligations for any purpose, the allocation of deposits
to the Collateral Accounts and any distributions therefrom. The information
contained in such records shall be made available to any other Secured Party
upon request.
ARTICLE IV
PROCEEDS RECEIVED UNDER THE PLEDGE AGREEMENTS
SECTION 4.01. Collateral Accounts.
(a) Each of the Administrative Agent and the Indenture Trustee shall
establish and maintain two accounts into which it shall deposit all amounts
received by it in its capacity as Administrative Agent or Indenture Trustee, as
the case may be (and not in any other capacity), in respect of the Shared
Collateral upon an Event of Default, including all monies received on account of
any sale of or other realization upon any of the Shared Collateral pursuant to
the Pledge Agreement to which it is a party. One of the two accounts of such
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person referred to in the preceding sentence shall be established and maintained
by each of the Administrative Agent and the Indenture Trustee for the benefit of
the Credit Agreement Parties in respect of the Outstanding Credit Agreement
Obligations (each a "Credit Agreement Collateral Account", and collectively the
"Credit Agreement Collateral Accounts"), and the second account shall be
established and maintained by each of the Administrative Agent and the Indenture
Trustee for the benefit of the Senior Note Creditors (each a "Senior Note
Collateral Account", and collectively, the "Senior Note Collateral Accounts",
and, together with the Credit Agreement Collateral Accounts, the "Collateral
Accounts"). All amounts deposited in the respective Collateral Accounts shall be
held by the Administrative Agent or the Indenture Trustee, as the case may be,
subject to the terms hereof and of the Pledge Agreement to which it is a party,
it being understood that any such amounts may be released to the Borrower to the
extent required by the applicable Pledge Agreement (any amounts so released to
be released from the respective Collateral Accounts pro rata in accordance with
the aggregate amounts deposited in such accounts during the term of this
Agreement; provided, however, that the aggregate amounts deposited in either
Credit Agreement Collateral Account shall be deemed to have been reduced by any
amounts released from such Account pursuant to paragraph (d) below). None of the
Companies shall have any rights with respect to, and the Administrative Agent or
the Indenture Trustee, as the case may be, shall have exclusive dominion and
control over, the Collateral Accounts.
(b) Except as set forth in paragraphs (d) and (g) below, all amounts
that the Administrative Agent or the Indenture Trustee, as the case may be, is
required at any time to deposit in the respective Collateral Accounts pursuant
to paragraph (a) above shall be allocated as among, and deposited in, the
applicable Credit Agreement Collateral Account and the applicable Senior Note
Collateral Account pro rata in accordance with the aggregate amount of
Outstanding Credit Agreement Obligations and Outstanding Senior Note
Obligations.
(c) Each of the Administrative Agent and the Indenture Trustee shall
establish sub-accounts in its Credit Agreement Collateral Account with respect
to each outstanding Letter of Credit. All amounts deposited in the Credit
Agreement Collateral Account in respect of Letters of Credit shall be allocated
among, and deposited in, the respective sub-accounts therein pro rata in
accordance with the Unfunded L/C Exposure with respect to the related Letters of
Credit. If, on or after the date on which any funds are deposited in the Credit
Agreement Collateral Account pursuant to paragraph (b) above, any Letter of
Credit is drawn upon by the beneficiary thereof, the Administrative Agent shall
apply any funds in the sub-account with respect to such Letter of Credit to the
reimbursement of such L/C Disbursement as if such reimbursement were being made
by the Borrower pursuant to the Credit Agreement (but not in an amount in excess
of the amount of such drawing plus accrued and unpaid interest thereon from the
date of draw to the date of payment).
(d) At the time of any expiration or cancellation of any outstanding
Letter of Credit, or any other reduction in the amount of Unfunded L/C Exposure
thereunder (other than as a result of an L/C Disbursement), the amount of funds
in the sub-account with respect to such Letter of Credit (or, in the case of any
partial reduction in the amount of Unfunded L/C Exposure thereunder, a pro rata
portion of such funds) shall be released from such sub-account, and the funds so
released shall be allocated among, and deposited in, the Credit Agreement
Collateral Account and the Senior Note Collateral Account pro rata in accordance
with the
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aggregate amount of the Outstanding Credit Agreement Obligations and Outstanding
Senior Note Obligations, respectively, at such time.
(e) Each of the Administrative Agent and the Indenture Trustee shall
have the right at any time and from time to time to apply any amounts in the
Collateral Accounts to the payment of the reasonable out-of-pocket costs and
expenses incurred by such person in administering and carrying out their
respective obligations under this Agreement or the Pledge Agreements, in
exercising or attempting to exercise any right or remedy hereunder or thereunder
or in taking possession of, protecting, preserving or disposing of any item of
Collateral, and all amounts against or for which such person is to be
indemnified or reimbursed hereunder (excluding any such costs, expenses or
amounts that have theretofore been reimbursed) until all of such costs, expenses
and amounts have been paid in full; provided, however, that any such application
shall be allocated as among the Credit Agreement Collateral Account (provided
that the aggregate amounts deposited in the Credit Agreement Collateral Account
in respect of Letters of Credit shall be deemed to have been reduced by any
amounts released from such Account pursuant to paragraph (d) above) and the
Senior Note Collateral Account ratably in accordance with the aggregate amounts
deposited in such Accounts during the term of this Agreement. Each of the
Administrative Agent and the Indenture Trustee shall reimburse any Credit
Agreement Party or Senior Note Creditor, as the case may be, prior to applying
any amounts in the Collateral Accounts pursuant to Section 4.02 for any and all
losses with respect to any amounts expended with respect to any indemnity
provided in accordance with Section 5.03(d) by such Credit Agreement Party or
Senior Note Creditor by application of funds in the Collateral Accounts in the
same manner as provided in the proviso to the preceding sentence.
(f) For purposes of determining allocations and deposits of funds (but
not distributions of funds) pursuant to this Section 4.01 and Section 4.02, any
Outstanding Obligations shall be deemed to be reduced by the amount, if any,
held by the Administrative Agent and the Indenture Trustee in the Collateral
Accounts (or sub-account therein) from which distributions are to be paid in
respect of such Outstanding Obligations.
(g) If, at any time that the Administrative Agent or the Indenture
Trustee receives any amounts to be deposited in the Collateral Accounts, any
portion of the Outstanding Obligations consists of out-of-pocket costs and
expenses (including attorney fees and disbursements) or other claims in respect
of any indemnification or expense reimbursement obligations of any of the
Companies under any of the Senior Credit Documents (collectively, "Reimbursement
Obligations"), then, prior to allocating such amounts among the Collateral
Accounts, the Administrative Agent or the Indenture Trustee, as applicable,
shall, to the extent it shall have received notice of such Reimbursement
Obligations, apply such amounts to pay such Reimbursement Obligations (pro rata
among such Reimbursement Obligations, in the event that the amount to be so
applied is insufficient to pay all such Reimbursement Obligations in full).
SECTION 4.02. Application of Proceeds. (a) Amounts deposited in the
Credit Agreement Collateral Accounts shall be applied in the following order of
priority:
First, to the payment of all Outstanding Credit Agreement Obligations
that consist of costs and expenses incurred in connection with the
enforcement or protection
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of the rights of the Credit Agreement Parties and other fees and expenses
of the Administrative Agent;
Second, to the Credit Agreement Parties in respect of the Outstanding
Credit Agreement Obligations pro rata in accordance with the aggregate
amounts of the Outstanding Credit Agreement Obligations at such time, until
the Outstanding Credit Agreement Obligations shall have been paid in full;
Third, if there is any Unfunded L/C Exposure to the Credit Agreement
Account in an amount equal to such Unfunded L/C Exposure;
Fourth, if there are any Outstanding Senior Note Obligations to the
Senior Note Collateral Account in an amount equal to such outstanding
Senior Note Obligations; and
Fifth, the balance, if any, to the Borrower or such other person or
persons as shall be entitled thereto.
(b) Amounts deposited in the Senior Note Collateral Accounts shall be
applied in the following order of priority:
First, to the payment of all Outstanding Senior Note Obligations that
consist of costs and expenses incurred in connection with the enforcement
or protection of the rights of the Senior Note Creditors and other fees and
expenses of the Indenture Trustee;
Second, to the Senior Note Creditors pro rata in accordance with the
aggregate amounts of the Outstanding Senior Note Obligations at such time,
until the Outstanding Senior Note Obligations shall have been paid in full;
Third, if there are any Outstanding Credit Agreement Obligations (or
if the Lenders shall have any remaining commitments to lend under the
Credit Agreement), or if there is any Unfunded L/C Exposure (or if the
Lenders shall have any remaining commitments to participate in the issuance
of Letters of Credit), to the Credit Agreement Collateral Account pro rata
in accordance with the respective amounts of such Outstanding Obligations;
and
Fourth, the balance, if any, to the Borrower or such other person or
persons as shall be entitled thereto.
(c) All amounts deposited in any sub-account in the Credit Agreement
Collateral Account shall be applied as provided in Sections 4.01 (c) and (d).
(d) Each Secured Party agrees that, notwithstanding any provision of
this Agreement or the other Senior Credit Documents, any sums and amounts
received by such Secured Party pursuant to this Section 4.02 shall be applied to
the payment of its Outstanding Obligations as follows: first, to the payment of
all Outstanding Obligations owed to such Secured Party, other than principal,
premium, interest and obligations in respect of
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reimbursement of L/C Disbursements; second, to the payment of all Outstanding
Obligations owed to such Secured Party consisting of accrued interest; and
third, to the payment of all Outstanding Obligations owed to such Secured Party
consisting of principal, premium and obligations in respect of reimbursement of
L/C Disbursements.
SECTION 4.03. Time of Payments. Unless the Administrative Agent or the
Indenture Trustee shall have received written instructions from the Required
Secured Parties as to the times at which any amounts are to be distributed
pursuant to Section 4.02, all distributions under Section 4.02 shall be made at
such times and as promptly as such person shall determine to be reasonable and
practicable under the circumstances, subject to Section 4.04; provided, however,
that any distributions from the Credit Agreement Collateral Account and the
Senior Note Collateral Account shall be made substantially simultaneously.
SECTION 4.04. Application of Amounts Not Distributable. If there is no
provision under the Credit Agreement or the Indenture, as the case may be, for
the application of amounts that are to be distributed to the parties to the
Credit Agreement or the Indenture pursuant to Section 4.02 (whether by virtue of
the applicable Outstanding Obligations thereunder not being then due and payable
or otherwise) or for the holding of such amounts by or on behalf of such parties
pending application thereof, then the Administrative Agent or the Indenture
Trustee, as the case may be, shall invest the amounts in the applicable
Collateral Account in investments permitted by Section 4.05 and shall hold such
amounts and all proceeds of such investments in such Collateral Account for the
benefit of the Secured Parties until such amounts are either applied against
such Outstanding Obligations or such Outstanding Obligations have been paid in
full.
SECTION 4.05. Investment of Amounts in Collateral Accounts. Pending
the disbursement thereof pursuant to the terms of this Agreement, all amounts in
the Collateral Accounts shall (to the extent deemed practical) be invested by
the Administrative Agent and the Indenture Trustee, as the case may be, in
Permitted Investments. Each of the Administrative Agent and the Indenture
Trustee shall, to the extent that the timing of distributions to be made from
any Collateral Account is known or can be reasonably anticipated, select
Permitted Investments for such Collateral Account that mature prior to the
anticipated date of any distribution to be made from such Collateral Account.
Neither the Administrative Agent nor the Indenture Trustee shall discriminate
between Collateral Accounts in the selection of Permitted Investments; provided,
however, that the foregoing shall not be construed to prevent the selection of
longer-term investments for the Letter of Credit Collateral Account if
distributions from such Account are expected to be made at a later date than
distributions from the other Collateral Accounts. Neither the Administrative
Agent nor the Indenture Trustee shall be liable for any loss resulting from any
investment made in accordance with the provisions of this Section 4.05, except
to the extent such loss was the result of such person's gross negligence or
willful misconduct. The Administrative Agent and the Indenture Trustee agree to
account to each other as to investment of and documents in the Collateral
Accounts promptly upon request.
ARTICLE V
EXPENSES AND INDEMNIFICATION BY COMPANIES
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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 indemnify and hold harmless the
Administrative Agent, the Credit Agreement Parties, the Indenture Trustee, the
Senior Noteholders 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 any
Indemnitee in their respective capacities 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 VI
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 VII
INTERCREDITOR ARRANGEMENTS
SECTION 7.01. Security Interests. Each of the Secured Parties hereby
agrees that the liens and security interests in respect of the Shared Collateral
granted to (i) the Administrative Agent, for the benefit of the Lenders, under
the Lender Pledge Agreement, and (ii) the Indenture Trustee, for the benefit of
the Senior Note Holders, under the Senior Note Pledge Agreement, shall be
treated, as among the Secured Parties, as having equal priority and shall at all
times be shared by the Secured Parties as provided herein, notwithstanding the
order or time of attachment, the order, time and manner of perfection, or the
order or time of
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filing or recordation of any document or instrument, or other method of
perfecting a security interest in favor of any Secured Party in any of the
Shared Collateral. Each of the Secured Parties hereby further agrees that
nothing contained in this Agreement (other than the access rights set forth in
Section 3.04) shall be construed to affect any of the Secured Parties' rights
with respect to any of the Collateral to which it is entitled other than the
Shared Collateral. In the event that any of the Shared Collateral consists of
certificated securities, the Companies shall deliver such certificated
securities to be held by either the Indenture Trustee or the Administrative
Agent, and each of the Indenture Trustee and the Administrative Agent agree that
any such certificates controlled by it are held for the benefit of both the
Credit Agreement Parties and the Senior Note Creditors in accordance with this
Agreement. Each of the Administrative Agent and the Indenture Trustee further
agree that in the event that its obligations are repaid in full, then any such
certificates held by such party shall be delivered to such other party.
SECTION 7.02. Turnover of Shared Collateral and Certain Payments. If
any Secured Party acquires custody, control or possession of any Shared
Collateral or proceeds therefrom other than pursuant to the terms of this
Agreement, then such Secured Party shall promptly cause such Shared Collateral,
proceeds or payments to be delivered to or put in the custody, possession or
control of either the Administrative Agent or the Indenture Trustee, as
applicable, for disposition or distribution in accordance with the provisions of
Sections 4.01 and 4.02. Until such time as the provisions of the immediately
preceding sentence have been complied with, such Secured Party shall be deemed
to hold such Shared Collateral, proceeds or payments in trust for the parties
entitled thereto hereunder. Notwithstanding the foregoing, no Secured Party
shall be required to deliver to or put in the custody, possession or control of
the Administrative Agent or the Indenture Trustee or to hold in trust as
specified in the preceding sentence any amount of any Outstanding Obligation
paid or prepaid by the Companies to it (and not obtained by it through any sale
of or other realization upon any Shared Collateral or by enforcement of its
rights as provided herein and in the Lender Pledge Agreement and the Senior Note
Pledge Agreement) in accordance with the terms of the Credit Agreement or the
Indenture, as applicable.
SECTION 7.03. Release of Collateral. (a) Upon the satisfaction of the
provisions of the Credit Agreement and the Indenture that permit any Shared
Collateral to be released, such Shared Collateral shall be released upon the
receipt of evidence required by the Credit Agreement and the Indenture and
satisfactory to the Administrative Agent and the Indenture Trustee that such
provisions have been satisfied in full (and, if such release is made in
connection with the sale, transfer or other disposition of the Shared
Collateral, the proceeds of such transaction have been or will be applied to
repay or prepay Outstanding Obligations to the extent required by the Credit
Agreement and the Indenture).
(b) Shared Collateral may be released in connection with the exercise
of any rights, powers or remedies by the Administrative Agent and the Indenture
Trustee pursuant to and in accordance with Section 3.01 and such release shall
not require any approval under this Section 7.03.
(c) The Secured Parties hereby authorize the Administrative Agent and
the Indenture Trustee to execute releases and other documents in form and
substance satisfactory
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to the Secured Parties in respect of any release of Shared Collateral permitted
under this Section 7.03.
SECTION 7.04. Purchase of Collateral. Any Secured Party, Credit
Agreement Party or Senior Note Creditor may purchase Shared Collateral at any
public sale of such Shared Collateral pursuant to either Pledge Agreement and
may make payment on account thereof by using any Outstanding Obligation then due
and payable to such Person from the person that granted a security interest in
such Shared Collateral as a credit against the purchase price to the extent, but
only to the extent, approved by the Required Lenders and holders of a majority
of the Voting Senior Note Obligations.
SECTION 7.05. 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
ARTICLE VIII
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 IX
MISCELLANEOUS
SECTION 9.01. No Individual Action. No Secured Party may require the
Administrative Agent or the Indenture Trustee to take or refrain from taking any
action hereunder or under either Pledge Agreement or with respect to any of the
Shared Collateral except as and to the extent expressly set forth in this
Agreement.
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SECTION 9.02. 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. 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 (ii) of Section 9.06) are intended to confer a benefit
upon the Companies and shall be enforceable by the Companies.
SECTION 9.03. Notices. All notices and other communications provided
for herein shall be in writing and delivered to the address set forth beneath
its signature hereto or as subsequently directed in writing to all other parties
hereto in accordance with this Section 9.03. 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 9.04. 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; provided,
however, that (i) Articles I, II, III, IV, V, VIII and IX, and Sections 7.01,
7.02 and 7.03, shall survive, and remain operative and in full force and effect,
as long as there are any Outstanding Obligations that are secured by either
Pledge Agreement and (ii) this Section 9.04, Article V and Section 9.05 of this
Agreement shall survive, and remain operative and in full force and effect,
regardless of the termination of this Agreement.
SECTION 9.05. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.06. 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
holders of a majority of the Voting Senior Note Obligations; provided, however,
that (i) no such modification or
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amendment shall modify any provision hereof that is intended to provide for the
equal and ratable security of all Outstanding Obligations without the prior
written consent of all Secured Parties, (ii) no such modification or amendment
shall be made to Section 5.05 or 7.03 or to the definition of the term "Required
Secured Parties" for purposes of such Sections, or to Section 9.02(b) or to this
clause (ii), without the prior written consent of the Companies and (iii) no
such modification or amendment shall change the definition of the term "Required
Secured Parties" or this Section or Sections 7.02 or 7.03 without the prior
written consent of all Secured Parties. 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 parry to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 9.07. 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 9.08. 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 9.09. 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 9.10. 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 9.11. 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 with respect thereto. 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 Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
BLUE BAR, L.P.
By: Blue Steel Corporation
Its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
BLUE STEEL CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
N&T RAILWAY COMPANY LLC
By: Republic Engineered Products LLC
Its Sole Member
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
