AMENDED AND RESTATED INTERCREDITOR
AND SUBORDINATION AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AND SUBORDINATION AGREEMENT
(the "Agreement") dated as of August 13, 1999 is by and among United States
Trust Company of New York, as Collateral Agent (as defined), United States Trust
Company of New York, as Trustee (as defined) with respect to the Senior Secured
Notes (as defined) issued under the Indenture (as defined), the Pennsylvania
Lenders (as defined), BankBoston, N.A., as Agent (as defined), those parties who
in the future become Government Lenders (as defined), those parties who in the
future become Notes Refinancing Lenders (as defined), those parties who in the
future become New Bar Mill Lenders (as defined), Republic Technologies
International Holdings, LLC, a Delaware limited liability company ("Holdings"),
Republic Technologies International, LLC, a Delaware limited liability company
(the "Company"), RTI Capital Corp., a Delaware corporation ("RTI Capital"),
Bliss & Xxxxxxxx, LLC, a Delaware limited liability company ("Bliss LLC"),
Canadian Drawn Steel Company Inc., a Canadian corporation ("CDSC"), Nimishillen
& Tuscarawas, LLC, a Delaware limited liability company ("N&T"), and each of the
other Pledgors (as defined) from time to time made party hereto.
W I T N E S S E T H:
WHEREAS, the Pennsylvania Lenders, Bethlehem Steel Corporation, a
Delaware corporation ("Bethlehem"), and a number of other creditors and pledgors
are parties to an Amended and Restated Intercreditor and Subordination Agreement
dated as of April 2, 1996 (the "Existing Intercreditor Agreement");
WHEREAS, pursuant to a series of actions set forth in the Master
Restructuring Agreement (as defined), (i) the Company will succeed to all of the
assets of (including, without limitation, a portion of the Collateral (as
defined)), and will assume all of the liabilities (including all of the
indebtedness and other obligations owed to the Pennsylvania Lenders) of, Bar
Technologies, Inc. (formerly known as BRW Steel Corpo-
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ration) ("BarTech"), Republic Engineered Steels, Inc. ("RESI"), RES Holding
Corporation ("RES Holding") and USS/Kobe Steel Company ("USS/Kobe"), (ii) Bliss
LLC will succeed to all the assets of (including, without limitation, a portion
of the Collateral), and will assume all of the liabilities of, Bliss & Xxxxxxxx
Industries, Inc. and Bliss & Xxxxxxxx Steel Corporation and (iii) in connection
with the foregoing, the Company will refinance certain indebtedness of such
entities, including the 13 1/2% Senior Secured Notes due 2001 (the "Old Notes")
of BarTech, the amended and restated BarTech credit facility and the other
indebtedness to be repaid and referred to in Section 4 of the Master
Restructuring Agreement;
WHEREAS, the Company will be liable for the new indebtedness to be
incurred in connection with such refinancing and certain of such new
indebtedness will be secured by the same assets as secured the Old Notes, as
well as by certain new assets;
WHEREAS, the parties hereto desire to amend and restate the Existing
Intercreditor Agreement as and to the extent set forth herein;
WHEREAS, the Pledgors have requested that the Collateral Agent act,
and the Collateral Agent has agreed to act, as the agent of (i) the Trustee, for
the benefit of itself (in its capacity as Trustee) and the holders of the Senior
Secured Notes, (ii) each of the Pennsylvania Lenders, (iii) any Government
Lender, (iv) any Notes Refinancing Lender, (v) the New Bar Mill Lenders and (vi)
any Agent; and
WHEREAS, the parties hereto desire to set forth their agreements
with respect to the Collateral Agent's duties regarding the Collateral (as
defined) and the respective interests of the parties hereto in and to the
Collateral.
NOW, THEREFORE, in consideration of the mutual benefits accruing to
the parties hereto hereunder and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
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1. DEFINITIONS
As used herein, the following terms shall have the meanings ascribed
to them below. All terms used herein which are defined in the UCC shall have the
meanings set forth in the UCC unless otherwise defined herein.
1.1 "Acceptable Bank" means a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by a Federal or State authority and, to the extent there is such an
institution eligible and willing to serve, having a corporate trust office in
The City of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examination authority, then for the purposes of this definition,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.
1.2 "Accounts" means, collectively, all of the applicable Pledgors'
and their subsidiaries' 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 any applicable Pledgor relating in any way to Inventory or arising
from the sale or lease of Inventory or the rendering of services by any
applicable Pledgor or subsidiary, 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 Pledgor or subsidiary,
(iii) all of the applicable Pledgors' or subsidiaries' 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
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security interests held by or granted to any applicable Pledgor or subsidiary 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.
1.3 "Acquisition Document Rights" means, collectively, all of the
applicable Pledgors' presently existing or hereafter arising rights, title and
interest in, to and under the Acquisition Documents including, without
limitation, (i) all rights and remedies relating to monetary damages, including
indemnification rights and remedies, and claims for damages or other relief
pursuant to or in respect of the Acquisition Documents, (ii) all rights and
remedies relating to monetary damages, including indemnification rights and
remedies, and claims for monetary damages under or in respect of the agreements,
documents and instruments referred to in the Acquisition Documents or related
thereto, (iii) all Intangibles to the extent relating to any of the foregoing,
(iv) all Documents to the extent relating to any of the foregoing and (v) all
Proceeds, collections, recoveries and rights of subrogation of any of the
foregoing.
1.4 "Acquisition Documents" means, collectively, the following
agreements, each as amended, amended and restated, supplemented, extended,
renewed, replaced or otherwise modified from time to time: (i) that certain
contribution agreement dated as of December 22, 1993 and amended by amendment
no. 1 to contribution agreement, dated as of January 1994, amendment no. 2 to
contribution agreement, dated as of January 7, 1994, amendment no. 3 to
contribution agreement, dated as of June 7, 1994, amendment no. 4 to
contribution agreement, dated as of June 29, 1994, and amendment no. 5 to
contribution agreement, dated as of September 21, 1994 (the "Contribution
Agreement") by and between Bethlehem and the Company, and all documents,
agreements and other instruments then or at any time thereafter executed and/or
delivered in connection therewith or related thereto, (ii) that certain amended
and restated agreement and plan of merger, dated as of October 18, 1995 (the
"B&L Merger Agreement"), by and among the Company, B&L Acquisition Corporation
and B&L, and all documents, agreements and other instruments executed and/or
delivered in connection therewith or related
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thereto, and (iii) the Master Restructuring Agreement and all documents,
agreements and other instruments executed and/or delivered in connection
therewith or related thereto.
1.5 "Affiliate" shall have the meaning ascribed to that term in the
Indenture.
1.6 "Agent" means BankBoston, N.A., as Agent under the Credit
Facility, and any successors acting as agent or collateral agent under the
Credit Facility or any agent or collateral agent under any other Credit Facility
or Credit Facilities which is or are secured by (i) to the extent such Credit
Facility or Credit Facilities are separately represented by an agent for a
revolving credit facility, a grant of a first priority Lien on Accounts and
Inventory, in which case "Agent" or "Revolver Agent" shall refer to such
revolving credit agent and (ii) to the extent such Credit Facility or Credit
Facilities are separately represented by an agent for a term loan facility, a
grant of a first priority Lien on the Cast-Roll Facility, in which case "Agent"
or "Term Agent" shall refer to such term loan agent. To the extent the Credit
Facility or Credit Facilities are not separately represented by an agent for the
revolving credit facility and an agent for the term loan facility, references to
"Term Agent" and "Revolving Agent" shall be deemed to refer to the Agent.
1.7 "Bankruptcy Law" has the meaning ascribed to that term under the
Indenture.
1.8 "BarTech Intellectual Property" means all Intellectual Property
of the Company to the extent such Intellectual Property was previously owned by
BarTech.
1.9 "BID Loans" means the loans made or to be made to the Company by
the Johnstown Industrial Development Corporation under the Business
Infrastructure Development Program with
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grant funds provided by or through Commerce in an aggregate principal amount not
to exceed $2,500,000.
1.10 "Bliss & Xxxxxxxx Equipment" means, collectively, (i) all
Equipment of Bliss LLC and CDSC, and all interests of Bliss LLC and CDSC in
Equipment, whether now owned or hereafter acquired, which is located at or used
in connection with the operation of the business conducted at any of the Bliss &
Xxxxxxxx Real Estate, (ii) all Intangibles to the extent relating thereto, (iii)
all Documents to the extent relating thereto and (iv) all Proceeds of any of the
foregoing.
1.11 "Bliss & Xxxxxxxx Real Estate" means all of the Real Estate
owned by Bliss LLC or CDSC or in which Bliss LLC or CDSC may have any interest
located in Harvey, Illinois, Batavia, Illinois, Medina, Ohio and Xxxxxxxx,
Xxxxxxx, Xxxxxx.
1.12 "Business Day" means any day other than a Saturday, Sunday or
any other day on which banking institutions in the City of New York are required
or authorized by law or other governmental action to be closed.
1.13 "Cash Equivalents" means, at any time, (a) any evidence of
Indebtedness with a maturity of 365 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (b) certificates of deposit or
acceptances with a maturity of 365 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250,000,000; (c) repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the government of the United
States of America or issued by any agency thereof and backed by the full faith
and credit of the United States of America, in each case maturing within one
year from the date of acquisition; provided that the terms of such agreements
comply with the guidelines set forth in the Federal Financial Agreements of
Depository Institutions With Securities Dealers and Others, as adopted by the
Comptroller of the Currency and (d) readily marketable direct obligations is-
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sued by any state of the United States of America or any political subdivision
thereof having one of the two highest rating categories obtainable from either
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services.
1.14 "Cast-Roll Facility" means (i) all now-owned or after-acquired
real property and Equipment (including, without limitation, the No. 4(A)
electric arc furnace used in connection therewith) of the Company used in
connection with the facility commonly known as the "Cast-Roll Facility" and
located at 0000 Xxxxxxxxxx Xxxx, X.X., Xxxxxx, Xxxx, and used primarily in
connection with the Company's business and operations at such location, (ii) all
existing buildings, structures and other improvements located or erected
thereon, (iii) all Real Estate Fixtures, (iv) all permits, licenses, franchises,
certificates, consents, approvals and authorizations furnished in respect of the
real property and improvements located thereon including, without limitation,
building permits, certificates of occupancy and environmental certificates, (v)
all leases, licenses and occupancy and concession agreements in respect of the
real property and improvements located thereon and all rents, receipts, fees and
other amounts payable thereunder, and (vi) all general intangibles, documents
and proceeds (as each such term is defined in the UCC) relating to the
foregoing.
1.15 "CDBG Loans" means the loans made or to be made by the County
of Cambria, Pennsylvania with grant funds provided by or through the
Commonwealth of Pennsylvania, acting by and through the Department of Community
Affairs, under the Community Development Block Grant Competitive Program, in an
aggregate principal amount not to exceed $690,000.
1.16 "Collateral" means, collectively, (i) Miscellaneous Collateral,
(ii) Modernization Equipment, (iii) Other Johnstown Equipment, (iv) Johnstown
Real Estate, (v) the Other Collateral, (vi) the Collateral Account and
Collateral Account Funds, and (vii) the Acquisition Document Rights. Nothing
herein shall be construed as creating a Lien on any Collateral in favor of any
Secured Creditor that has not otherwise been granted a Lien pursuant to a
Security Document.
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1.17 "Collateral Account Funds" means, collectively, (i) all cash,
cash equivalents and Trust Moneys from time to time on deposit in any Collateral
Account, (ii) all Intangibles to the extent relating thereto, (iii) all
Documents to the extent relating thereto and (iv) all Proceeds of any of the
foregoing.
1.18 "Collateral Accounts" means, collectively, (i) the collateral
accounts maintained by the Collateral Agent in accordance with the provisions of
Section 12 of this Agreement, (ii) all Intangibles to the extent relating
thereto, (iii) all Documents to the extent relating thereto and (iv) all
Proceeds of any of the foregoing.
1.19 "Collateral Agent" means United States Trust Company of New
York, in its capacity as Collateral Agent under this Agreement until its
resignation or removal as Collateral Agent pursuant to the provisions of Section
10 hereof and, upon such resignation or removal, any successor Collateral Agent
appointed pursuant to the provisions of Section 10 hereof until such successor's
resignation or removal as Collateral Agent pursuant to the provisions of Section
10 hereof.
1.20 "Combination Transactions" means the "Contemplated
Transactions," as such term is defined in the Master Restructuring Agreement.
1.21 "Copyrights" means, collectively, all of the applicable
Pledgor's 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
applicable Pledgor'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
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(v) rights to xxx for past, present and future infringements thereof.
1.22 "Credit Facility" means the Revolving Credit Agreement, dated
as of the date hereof, among the Company, the Guarantors party thereto,
BankBoston, N.A., as Agent, the lenders party thereto, and other parties
thereto, if any, and their respective successors and assigns, including any
related notes, guarantees, security agreements, pledge agreements, collateral
documents, instruments and agreements executed in connection therewith, each as
the same may at any time be amended, amended and restated, supplemented or
otherwise modified, including any refinancing, refunding, replacement or
extension thereof and whether by the same or any other lender or group of
lenders and including any replacements thereof which separate the revolving and
term credit facilities into separate loan agreements or which separates the
Credit Facility into a revolving credit facility and a term loan facility.
1.23 "Credit Facility Security Documents" means, collectively, (i)
that certain Patent Collateral Assignment and Security Agreement, dated as of
August __, 1999, made by the Company in favor of the Agent, (ii) that certain
Trademark Collateral Assignment and Pledge Agreement, dated as of August __,
1999, made by the Company in favor of the Agent and (iii) any other security
agreements, pledges, collateral assignments or other instruments evidencing or
creating a Security Interest in favor of any Agent with respect to any Credit
Agreement Obligations in all or any portion of the Collateral.
1.24 "Debt Instruments" means, collectively, the Indenture, the
Senior Secured Notes, the Guarantees (as defined in the Indenture), the
Pennsylvania Lenders Debt Instruments, the Credit Facility, any Government
Assisted Debt Instruments, any Notes Refinancing Debt Instruments, any New Bar
Mill Lenders Debt Instruments and any other agreement or instrument governing
obligations of the applicable Pledgor to a Secured Creditor.
1.25 "Documents" means, collectively, all of the applicable
Pledgor's or a subsidiary's now owned or hereafter acquired "documents," as such
term is defined in the UCC, relat-
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ing to any item or type of Collateral, Accounts, Inventory or the Pledged
Interests, as the case may be, 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, Accounts, Inventory or the Pledged Interests, as the case
may be.
1.26 "ECP Loans" means the loans made or to be made to the Company
by the City of Johnstown, Pennsylvania with grant funds provided by or through
the Commonwealth of Pennsylvania, acting by and through the Department of
Community Affairs, under the Enterprise Zone Competitive Program, in an
aggregate principal amount not to exceed $1,000,000.
1.27 "EDP Loans" means the loans made or to be made to the Company
by the City of Johnstown, Pennsylvania with grant funds provided by or through
Commerce under the Economic Development Partnership Program in an aggregate
principal amount not to exceed $10,300,000.
1.28 "Enforcement" means, collectively or individually, to make
demand for payment or accelerate the Indebtedness of a Pledgor (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 a Debt Instrument or any
related mortgage, security instrument, guarantee or other agreement or under
applicable law.
1.29 "Enforcement Notice" means a written notice delivered, at a
time when an Event of Default has occurred and is continuing, by either the
Collateral Agent or an Agent announcing that it has commenced Enforcement with
respect to any of its rights and remedies.
1.30 "Equipment" means, collectively, all of the applicable
Pledgor's "equipment," as such term is defined in the UCC, whether or not
affixed to any Real Estate, and shall specifically include, without limitation,
(i) goods which would be
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considered a "fixture" under Section 9-313 of the UCC or otherwise would be
considered a "fixture" or a part of the Real Estate under applicable law
(including under the assembled economic unit or industrial plant doctrines which
might otherwise be applicable under the law of the Commonwealth of
Pennsylvania), except for Real Estate Fixtures, (ii) all machinery, facilities,
installations, apparatus, equipment, office machinery, electronic data
processing equipment, computers and computer hardware and software (whether
owned or licensed), all indoor or outdoor furniture, tools, materials,
automotive equipment, motor vehicles, manufacturing, storage and handling
equipment, overhead cranes, cutting and bending machines and other equipment for
the fabrication of steel bars, rods and wire products, furnaces, electric arc
furnaces, ladle arc furnaces, billet xxxxx, reheat furnaces, rolling xxxxx,
conveyors, coilers, cooling beds and all other equipment of any kind or nature
and owned by the applicable Pledgor or in which the applicable Pledgor may have
any interest (but only to the extent of such interest), (iii) all modifications,
renewals, improvements, alterations, repairs, substitutions, attachments,
additions, accessions and other property now or hereafter affixed thereto or
used in connection therewith and (iv) all replacements and all parts therefor.
1.31 "Event of Default" means an "Event of Default" under the
Indenture, as defined thereby, or any other event of default under any other
Debt Instrument.
1.32 "Excluded Collateral" means, collectively, (i) Inventory, (ii)
Accounts, (iii) the Pledged Interests, (iv) real property, fixtures, machinery
and equipment located in Cartersville, Bartow County, Georgia, (v) the Cast-Roll
Facility, (vi) Intellectual Property and (vii) all general intangibles,
documents and proceeds (as each such term is defined in the UCC) to the extent
relating thereto.
1.33 "Existing Liens" means the Liens of the Pennsylvania Lenders on
certain of the Collateral as of the date hereof.
1.34 "Existing Secured Creditors" means, collectively, the
Pennsylvania Lenders.
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1.35 "Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction.
1.36 "First Priority Majority Secured Creditors" means the Secured
Creditor (other than the Collateral Agent) which has a first priority Lien with
respect to such Collateral in accordance with Section 4.2(a) (or if there shall
be more than one Secured Creditor entitled to a first priority claim pursuant to
Section 4.2(a), the Secured Creditors holding an aggregate principal amount of
outstanding Indebtedness under Debt Instruments representing a majority of the
aggregate principal amount of outstanding Indebtedness secured by Liens on such
item of Collateral which have a first priority under the provisions of Section
4.2(a) hereof).
1.37 "Goodwill" means all goodwill connected with the use of, and
symbolized by, any of the Copyrights, Patents, Trademarks and Licenses.
1.38 "Government Assisted Debt Instruments" means the agreement(s)
and instrument(s) governing and evidencing any Government Assisted Indebtedness
that may be outstanding at any time.
1.39 "Government Assisted Indebtedness" means Government Assisted
Refinancing Indebtedness and New Government Assisted Indebtedness.
1.40 "Government Assisted Indebtedness Obligations" means the
obligations of any kind whatsoever of the Company under any Government Assisted
Debt Instrument and, without limiting the foregoing, all obligations of the
Company under any Government Lender Security Documents.
1.41 "Government Assisted Refinancing Indebtedness" means
Refinancing Indebtedness (as defined in the Indenture) borrowed by the Company
from any Federal, State or local governmental authority, agency or
instrumentality, or for which any such authority, agency or instrumentality
provides direct
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or indirect credit support to refinance Indebtedness which has been secured by
Existing Liens; provided that (x) the Liens on any Collateral securing such
Indebtedness are junior in priority to the Liens on such Collateral of the
Trustee and (y) such Liens do not extend to or cover any Non-Shared Collateral
or any property or assets not subject to Existing Liens.
1.42 "Government Lender Security Documents" means the agreement(s)
and instrument(s) evidencing or creating any Lien on all or any portion of the
Collateral for the benefit of a Government Lender securing the obligations of
the Company under any of the Government Assisted Debt Instruments.
1.43 "Government Lenders" means each entity that holds Government
Assisted Indebtedness.
1.44 "Guarantors" means, collectively, (i) each of Holdings, Bliss
LLC, CDSC and N&T and (ii) each other person is or becomes a Guarantor under the
Indenture, which person shall execute an acknowledgment (in form satisfactory to
the Collateral Agent) that such person shall be a "Guarantor" for purposes of
this Agreement.
1.45 "Indebtedness" shall have the meaning ascribed to that term
under the Indenture.
1.46 "Indenture" means the Indenture dated as of August 13, 1999 by
and among United States Trust Company of New York, as trustee, the Company, RTI
Capital and the Guarantors.
1.47 "Independent Appraiser" means a person who in the ordinary
course of its business appraises property and, where real property is involved,
is a member in good standing of the American Institute of Real Estate
Appraisers, recognized and licensed to do business in the jurisdiction where
such real property is situated who does not, and whose directors, officers and
employees and Affiliates do not, have a direct or indirect financial interest in
a Pledgor or a Secured Creditor.
1.48 "Independent Financial Advisor" means a nationally recognized
investment banking or public accounting firm which does not, and whose
directors, officers and employees and
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Affiliates do not, have a direct or indirect financial interest in a Pledgor or
a Secured Creditor.
1.49 "Intangibles" means, collectively, all of the applicable
Pledgor's or a subsidiary's 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, Accounts, Inventory, Intellectual Property or the Pledged
Interests, as the case may be, 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 applicable Pledgor or subsidiary and rights to refund or indemnification
to the extent the foregoing relate to any item or type of Collateral, Accounts,
Inventory, Intellectual Property or the Pledged Interests, as the case may be,
deposits and deposit accounts, letters of credit, documents, instruments,
chattel paper, bankers' acceptances and guarantees, and income tax refunds to
the extent relating to any item or type of Collateral, Accounts, Inventory,
Intellectual Property or the Pledged Interests, as the case may be, 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, Accounts, Inventory, Intellectual Property or the Pledged
Interests, as the case may be, corporate or other business records relating to
any item or type of Collateral, Accounts, Inventory, Intellectual Property or
the Pledged Interests, as the case may be, and all other general intangibles of
every kind and description relating to any item or type of Collateral, Accounts,
Inventory, Intellectual Property or the Pledged Interests, as the case may be.
1.50 "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.
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1.51 "Inventory" means, collectively, all now owned or hereafter
acquired "inventory" (as such term is defined in the UCC) of all of the
applicable Pledgors and their subsidiaries 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 applicable Pledgors,
together with all the containers, packing, packaging, shipping and similar
materials related thereto, and including such inventory as is temporarily out of
the applicable Pledgors' 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 applicable Pledgors 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.
1.52 "Johnstown Real Estate" means all of the Real Estate owned by
the Company or in which the Company may have any interest located in Johnstown,
Pennsylvania.
1.53 "Lackawanna Equipment" means, individually and collectively,
(i) all the Equipment owned by the Company or in which the Company may have any
interest located at the Lackawanna Real Estate, (ii) all Intangibles relating
thereto, (iii) all Documents relating thereto and (iv) all Proceeds relating to
any of the foregoing.
1.54 "Lackawanna Real Estate" means all of the Real Estate owned by
the Company or in which the Company may have any interest located in Lackawanna,
New York.
1.55 "Licenses" means, collectively, all of the applicable Pledgor's
presently existing or hereafter arising or
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acquired license and distribution agreements with any other party with respect
to a Patent, Trademark or Copyright, whether the applicable Pledgor 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 applicable Pledgor with
respect thereto, including, 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.
1.56 "Lien" means any mortgage, lease, lien (statutory or other),
pledge, security interest, encumbrance, claim, hypothecation, assignment for
security, deposit arrangement or preference or other security agreement of any
kind or nature whatsoever.
1.57 "Master Restructuring Agreement" means the Master Restructuring
Agreement dated as of [ ] 1999 among BarTech, RES Holding, RESI, USX RTI
Holdings, Inc. and USS/Kobe, together with all exhibits, schedules and annexes
thereto.
1.58 "Miscellaneous Collateral" means, collectively, (i) all
existing and future property and assets of the Pledgors, whether tangible or
intangible, fixed or liquid, upon which any Secured Creditor has been granted a
Lien pursuant to the Security Documents, other than the Excluded Collateral, the
New Collateral and any Other Collateral (excluding Collateral of the type
described in clause (i) of the definition thereof), (ii) all Intangibles to the
extent relating thereto, (iii) all Documents to the extent relating thereto and
(iv) all Proceeds of any of the foregoing.
1.59 "Modernization Equipment" has the meaning assigned to the term
"Johnstown Modernization Equipment" in the Existing Intercreditor Agreement.
1.60 "New Bar Mill" means (i) all now-owned or after-acquired real
property and Equipment used primarily in connection with the business and
operations of the Company and its
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Subsidiaries at the new large size bar mill and related quality verification
line and shipping center and heat treatment center to be acquired and/or
constructed by the Company or any of its Subsidiaries, (ii) all buildings,
structures and other improvements located or erected thereon, (iii) all Real
Estate Fixtures, (iv) all permits, licenses, franchises, certificates, consents,
approvals and authorizations furnished in respect of the real property and
improvements located thereon including, without limitation, building permits,
certificates of occupancy and environmental certificates, (v) all leases,
licenses and occupancy and concession agreements in respect of the real property
and improvements located thereon and all rents, receipts, fees and other amounts
payable thereunder, (vi) all Intangibles to the extent relating to the
foregoing, (vii) all Documents to the extent relating to the foregoing and
(viii) all Proceeds of any of the foregoing.
1.61 "New Bar Mill Lenders" means the financial institutions making
New Bar Mill Loans, if any, pursuant to the New Bar Mill Lenders Debt
Instruments.
1.62 "New Bar Mill Lenders Debt Instruments" means, collectively,
all agreements and instruments, if any, from time to time evidencing or
governing New Bar Mill Loans.
1.63 "New Bar Mill Lenders Secured Obligations" means any and all
obligations of any kind whatsoever of any Pledgor to the New Bar Mill Lenders
arising under the New Bar Mill Lenders Debt Instruments and, without limiting
the foregoing, all obligations of any Pledgor under the New Bar Mill Lenders
Security Documents; provided, that in no event shall the aggregate principal
amount of the New Bar Mill Lenders Secured Obligations exceed 65% of the
aggregate cost of the acquisition and/or construction of the New Bar Mill.
1.64 "New Bar Mill Lenders Security Documents" means, collectively,
all security agreements, mortgages, deeds of trust, pledges, collateral
assignments and other instruments evidencing or creating any Security Interest
in favor of the New Bar Mill Lenders with respect to any New Bar Mill Lenders
Secured Obligations in all or any portion of the Collateral.
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1.65 "New Bar Mill Loans" means any Indebtedness incurred by any
Pledgor to fund the acquisition and/or construction of the New Bar Mill in an
aggregate principal amount not to exceed 65% of the aggregate cost thereof;
provided, that such Indebtedness is incurred in compliance with all applicable
Debt Instruments.
1.66 "New Collateral" means, collectively, (i) all existing and
future property and assets of any Pledgor, whether tangible or intangible, fixed
or liquid, which did not constitute Collateral (as defined under the Existing
Intercreditor Agreement) in which any Existing Secured Creditor had been granted
a Lien pursuant to the applicable Security Documents prior to and without ever
giving effect to any of the Combination Transactions, the issuance of the Senior
Secured Notes and the making of any loans under the Credit Facility, including,
without limitation, all such property and assets then owned by RES Holding, RESI
and USS/Kobe and the New Bar Mill (as defined in the Indenture), (ii) all
Intangibles to the extent relating thereto, (iii) all Documents to the extent
relating thereto and (iv) all Proceeds of any of the foregoing. "New Collateral"
shall in any event exclude the Excluded Collateral.
1.67 "New Government Assisted Indebtedness" means Indebtedness from
any Federal, State or local governmental authority or agency or for which any
such authority, agency or instrumentality provides direct or indirect credit
support; provided that (x) the Liens on any Collateral securing such
Indebtedness are junior in priority to the Liens on such Collateral of the
Trustee and the holders of the Senior Secured Notes and the Liens of any other
Secured Creditors secured by a Lien on such item of Collateral, (y) the Liens do
not extend to any Non-Shared Collateral (other than the New Bar Mill) and (z)
the Liens secure an aggregate principal amount of Indebtedness that does not
exceed $20.0 million outstanding at any time.
1.68 "Non-Shared Collateral" means any and all Collateral not
constituting Shared Collateral, including, without limitation, the New
Collateral.
1.69 "Notes Mortgages" shall mean all "Mortgages," as such term is
defined in the Indenture.
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1.70 "Notes Refinancing Debt Instruments" means the agreement(s) and
instrument(s) governing and evidencing any Notes Refinancing Indebtedness.
1.71 "Notes Refinancing Indebtedness" means Indebtedness of the
Company or any of its Subsidiaries (including Indebtedness of another person to
the extent such Indebtedness is guaranteed by the Company or any of its
Subsidiaries) to the extent the proceeds thereof are used to refinance (whether
by amendment, renewal, extension or refunding) in full all outstanding
Indebtedness under the Senior Secured Notes and which is secured to the same
extent as the Notes Secured Obligations pursuant to any Notes Refinancing
Security Documents.
1.72 "Notes Refinancing Indebtedness Obligations" means the
obligations of any kind whatsoever of the Pledgors under any Notes Refinancing
Debt Instrument and, without limiting the foregoing, all obligations of the
Pledgors under any Notes Refinancing Security Documents.
1.73 "Notes Refinancing Lender" means each person, and any duly
authorized agent or representative of such person, that holds Notes Refinancing
Indebtedness.
1.74 "Notes Refinancing Security Documents" means the agreement(s)
and instrument(s) evidencing or creating any Lien on all or any portion of the
Collateral for the benefit of a Notes Refinancing Lender securing obligations of
the Pledgors under any of the Notes Refinancing Debt Instruments.
1.75 "Notes Representative" means the Trustee or holder(s) of a
majority of the outstanding principal amount of Notes.
1.76 "Notes Secured Obligations" means any and all obligations of
any kind whatsoever of the Company or any of its Subsidiaries in respect of the
Senior Secured Notes, the Indenture and the Guarantees and, without limiting the
foregoing, all obligations of the Pledgors owing to the Trustee or holders of
Notes under or with respect to the Notes Security Documents.
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1.77 "Notes Security Documents" means, collectively, to the extent
securing Notes Secured Obligations, (i) the Security Agreement, dated as of the
date hereof, between the Pledgors and the Collateral Agent, (ii) the Master
Pledge Agreement, dated as of the date hereof, among the Pledgors and the
Collateral Agent, (iii) the Notes Mortgages, each dated as of the date hereof,
between the Company and the Collateral Agent in respect of the Johnstown Real
Estate and any Real Estate comprising part of the Other Collateral, (iv) the
Notes Mortgages, each dated as of the date hereof, between Bliss LLC or CDSC, as
applicable, and the Collateral Agent with respect to the Bliss & Xxxxxxxx Real
Estate and (v) all security agreements, mortgages, deeds of trust, pledges,
collateral assignments and other instruments evidencing or creating any security
interest in favor of the Collateral Agent (for the benefit of the Trustee and
the holders of the Senior Secured Notes) in all or any portion of the
Collateral, in each case as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with their terms.
1.78 "Officers' Certificate" of any person means a certificate
signed by the Chairman, President, any Vice President, Secretary or Assistant
Secretary of such person and the Chief Financial Officer or Chief Accounting
Officer of such person.
1.79 "Opinion of Counsel" means a written opinion of counsel, who
may be counsel for a Pledgor, and who shall be reasonably acceptable to the
Collateral Agent and, if applicable, the Secured Creditors.
1.80 "Other Collateral" means (i) all existing and future property
and assets of the Pledgors, whether tangible or intangible, fixed or liquid,
real or personal, upon which a Lien has been granted to secure the Notes Secured
Obligations or the Notes Refinancing Indebtedness Obligations, (ii) all
Intangibles to the extent relating thereto, (iii) all Documents to the extent
relating thereto and (iv) all Proceeds of any of the foregoing. "Other
Collateral" shall (1) include, without limitation, the New Collateral, Bliss &
Xxxxxxxx Real Estate, Bliss & Xxxxxxxx Equipment, Lackawanna Real Estate,
Lackawanna Equipment, Miscellaneous Collateral pledged by any Pledgor
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(other than the Company), Bliss & Xxxxxxxx Equipment and Acquisition Document
Rights under or relating to the RES Merger Agreement, the B&L Merger Agreement
and the Master Restructuring Agreement, and (2) in no event include the Excluded
Collateral or the Shared Collateral.
1.81 "Other Johnstown Equipment" means, individually and
collectively, (i) all Equipment of the Company, whether now owned or hereafter
acquired, which is located at or used in connection with the operation of the
business conducted at the Johnstown Real Estate, other than Modernization
Equipment, (ii) all Intangibles to the extent relating thereto, (iii) all
Documents to the extent relating thereto and (iv) all Proceeds of any of the
foregoing.
1.82 "PA 108 Loans" means the loans made to the Company by the City
of Johnstown, Pennsylvania and the County of Cambria, Pennsylvania in the
aggregate principal amount not to exceed $8,500,000 with funds provided by the
United States Department of Housing and Urban Development under the Section 108
Program.
1.83 "Patents" means, collectively, all of the applicable Pledgors'
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
applicable Pledgors' 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 now and hereafter due and/or payable under and
with respect thereto, including, without limitation, 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.
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1.84 "Pennsylvania Lenders" means the Johnstown Industrial
Development Corporation, the County of Cambria, Pennsylvania and the City of
Johnstown, Pennsylvania.
1.85 "Pennsylvania Lenders Debt Instruments" means, collectively,
(i) the Master Agreement dated as of July 18, 1994, among the Company and the
Pennsylvania Lenders as amended (the "Master Agreement"), (ii) the Escrow
Agreement dated as of September 21, 1994 among the City of Johnstown,
Pennsylvania, the Company and B.T. Financial Management Trust Company, (iii) the
Economic Development Partnership Loan Agreement dated September 21, 1994,
between the City of Johnstown, Pennsylvania and the Company, (iv) the Economic
Development Partnership Note dated September 21, 1994 by the Company payable to
the City of Johnstown, Pennsylvania in the principal amount of $6,000,000, (v)
the Economic Development Partnership Fund Escrow Agreement dated September 21,
1994, among the City of Johnstown, Pennsylvania and B.T. Management Trust
Company, (vi) the Section 108 Loan Agreement dated July 20, 1994 by and among
the City of Johnstown, Pennsylvania, the County of Cambria, Pennsylvania and the
Company, as amended, (vii) the contract for Loan Guarantee Assistance under
Section 108 of the Housing and Community Development Act of 1974, as amended,
dated July 28, 1994 among the County of Cambria, Pennsylvania, the Secretary of
Housing and Urban Development and the Commonwealth of Pennsylvania, (viii) the
Contract for Loan Guarantee Assistance under Section 108 of the Housing and
Community Development Act of 1974, as amended, dated July 21, 1994 between the
City of Johnstown, Pennsylvania and the Secretary of Housing and Urban
Development, (ix) the BID Loan Agreement dated March 12, 1996 between the
Company and the Johnstown Industrial Development Corporation, (x) the BID Note
dated March 12, 1996 by the Company payable to Johnstown Industrial Development
Corporation in the principal amount of $2,000,000 and (xi) all other agreements
and instruments from time to time evidencing or governing the BID Loans, the
CDBG Loans, the ECP Loans and the EDP Loans.
1.86 "Pennsylvania Lenders Secured Obligations" means any and all
obligations of any kind whatsoever of the Company to the respective Pennsylvania
Lenders arising under the Pennsylvania Lenders Debt Instruments and, without
limiting
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the foregoing, all obligations of the Company under the Pennsylvania Lenders
Security Documents.
1.87 "Pennsylvania Lenders Security Documents" means, collectively,
(i) the Assignment of Subscription Documents dated September 21, 1994 by and
among BRW Steel Holdings, L.P., Johnstown Acquisition Corp. and the Company,
(ii) Economic Development Partnership, Community Development Block Grant
Priority and Enterprise Zone Competitive Program and Section 108 Open-End
Mortgage dated September 21, 1994 among the City of Johnstown, Pennsylvania, the
County of Cambria, Pennsylvania and the Company and recorded on September 26,
1994 in Record Book Volume 1328, page 684 in the Recorder's Office of Cambria
County, Pennsylvania, (iii) the Economic Development Partnership Fund, Community
Development Block Grant Project, the Enterprise Zone Competitive Program and
Section 108 Security Agreement dated September 21, 1994 by the Company to the
City of Johnstown, Pennsylvania and the County of Cambria, Pennsylvania, (iv)
the BID Security Agreement dated March 12, 1996 from the Company to the
Johnstown Industrial Development Corporation and (v) all security agreements,
mortgages, deeds of trust, pledges, collateral assignments and other instruments
evidencing or creating a Security Interest in favor of any Pennsylvania Lender
with respect to any Pennsylvania Lenders Secured Obligations in all or any
portion of the Collateral.
1.88 "Pledged Interests" means, collectively, (i) all membership
interests and/or partnership interests of the Company and each Restricted
Subsidiary (as defined in the Indenture), together with all rights, privileges,
authority and powers of each Pledgor 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 Company and each Restricted Subsidiary, including the certificates
representing such shares and any interest of any Pledgor in the entries on the
books of any financial intermediary pertaining to the such shares, (iii) all
additional membership interests, partnership interests and shares of capital
stock of any issuer of the interests and shares described in clauses (i) and
(ii) of this definition from time to time acquired by any
-24-
Pledgor 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
Restricted Subsidiary, 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
Pledgor 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 Pledgor 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 Pledgor 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.
1.89 "Pledgors" means, collectively, (i) the Company, (ii) Bliss
LLC, (iii) CDSC, (iv) RTI Capital, (v) Holdings, (vi) N&T and (vii) each other
person (a) required by the terms of any Debt Instrument to create a Lien in
favor of one or more of the Secured Creditors subject to the terms of this
Agreement or (b) required by the terms of the Credit Facility to create a Lien
on assets or property of such person thereunder. When used with respect to any
particular item of Collateral, Accounts, Inventory and the Pledged Interests, as
the case may be, "Pledgor" or "Pledgors" means only that Pledgor or those
Pledgors that have actually granted a Security Interest in that particular item
of Collateral, Accounts, Inventory, Intellectual Property and the Pledged
Interests, as the case may be, pursuant to one or more Security Documents.
1.90 "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
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to this Agreement), indemnity, warranty, guarantee or claim payable to an Agent,
the Collateral Agent or to any Pledgor, as the case may be, from time to time
with respect to any item or type of Collateral, Accounts, Inventory,
Intellectual Property or the Pledged Interests, as the case may be, (ii)
payments (in any form whatsoever) made or due and payable to any Pledgor 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,
Accounts, Inventory, Intellectual Property or the Pledged Interests, as the case
may be, by any governmental authority (or any person acting under color of a
governmental authority), (iii) products of any item or type of Collateral,
Accounts, Inventory, Intellectual Property or the Pledged Interests, as the case
may be, and (iv) other amounts from time to time paid or payable under or in
connection with any item or type of Collateral, Accounts, Inventory,
Intellectual Property or the Pledged Interests, as the case may be.
1.91 "Real Estate" means, collectively, all estates, rights and
interests of the Company and the other applicable Pledgors in (i) the real
property located in (a) Johnstown, Pennsylvania (as more particularly described
in Schedule A-1 attached hereto), (b) Lackawanna, New York (as more particularly
described in Schedule A-2 attached hereto), (c) Harvey, Illinois (as more
particularly described in Schedule A-3 attached hereto), (d) Batavia, Illinois
(as more particularly described in Schedule A-4 attached hereto), (e) Medina,
Ohio (as more particularly described in Schedule A-5 attached hereto), (f)
Xxxxxxxx, Xxxxxxx, Xxxxxx (as more particularly described in Schedule A-6
attached hereto), and all appurtenances relating or appertaining thereto, (g)
Canton, Ohio (as more particularly described in Schedule A-7 attached hereto),
(h) Massillon, Ohio (as more particularly described in Schedule A-8 attached
hereto), (i) Chicago, Illinois (as more particularly described in Schedule A-9
attached hereto), (j) Gary, Indiana (as more particularly described in Schedule
A-10 attached hereto), (k) Beaver Falls, Pennsylvania (as more particularly
described in Schedule A-11 attached hereto), (l) Willimantic, Connecticut (as
more particularly described in Schedule A-12 attached hereto) and (m) Lorain,
Ohio (as more particularly de-
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scribed in Schedule A-13 attached hereto), (ii) all existing buildings,
structures and other improvements located or erected thereon, (iii) all Real
Estate Fixtures, (iv) all permits, licenses, franchises, certificates, consents,
approvals and authorizations furnished in respect of the real property and
improvements located thereon including, without limitation, building permits,
certificates of occupancy and environmental certificates, (v) all leases,
licenses and occupancy and concession agreements in respect of the real property
and improvements located thereon and all rents, receipts, fees and other amounts
payable thereunder, (vi) all Intangibles relating to any of the foregoing, (vii)
all Documents relating to any of the foregoing and (viii) all Proceeds of any of
the foregoing; provided, however, that Real Estate shall in no event include (A)
any item of property described in clauses (i) through (v) of this definition
which is integral to the manufacturing or other business operations conducted by
the Company or any other applicable Pledgor at any real property as opposed to
the occupancy (or customarily used by occupants in connection with the
occupancy) of the land or the operation of the buildings, structures and
improvements located thereon as such and (B) any Intangibles, Documents or
Proceeds relating to any property excluded from this definition by clause (A) of
this proviso.
1.92 "Real Estate Fixtures" means only such "equipment" as defined
in the UCC which is (i) affixed to any Real Estate, (ii) considered a fixture or
a part of the Real Estate under applicable law (other than under the assembled
economic unit or industrial plant doctrines which might otherwise be applicable
under the law of the Commonwealth of Pennsylvania with respect to equipment of
the Company located at the Johnstown and Beaver Falls, Pennsylvania facilities
of the Company) and (iii) integral to the occupancy or customarily used by
occupants in connection with the occupancy of the land or the operation of the
buildings, structures and improvements thereon as such, as opposed to
manufacturing or other business operations conducted therein or therefrom and,
in any event, shall include, without limitation, all switchboards, utility
systems, sprinkler and alarm systems or other fire prevention or extinguishing
apparatus and materials, HVAC equipment, boilers, oil boilers,
telecommunications equipment, refrigeration, elec-
-27-
tronic monitoring, water or lighting systems, power, sanitation, waste removal,
pollution abatement or control, elevators, window cleaning, maintenance or other
systems or equipment, appliances or supplies, all heating apparatus, generators,
plumbing, lighting and gas fixtures, laundry, ventilating and air conditioning
equipment, all awnings, blinds, screens, storm sashes, pumping equipment,
electrical equipment, including transformers, radiators and piping, coal
stokers, plumbing and bathroom fixtures, washtubs, sinks, stoves, ranges, window
shades, motors, generators, dynamos, kitchen cabinets, incinerators, plants and
shrubbery and all other articles used or useful in connection with the use,
operation, maintenance or repair of any part of the Real Estate, together with
any and all modifications, renewals, improvements, alterations, repairs,
substitutions, attachments, additions, accessions and other property now or
hereafter affixed thereto or used in connection therewith, all replacements and
all parts therefor, and together with all substitutes for any of the foregoing.
Real Estate Fixtures shall not in any event include any of the equipment set
forth in an Appraisal Review from MB Valuation Services, Inc., dated June 8,
1994 attached to the Existing Intercreditor Agreement as Exhibit D or any of the
Modernization Equipment.
1.93 "Replaced Debt" means (i) the $91,609,000 principal amount of
13 1/2% Senior Secured Notes due 2001, Series A and Series B, issued by BarTech
and guaranteed by certain of the Guarantors under the related indenture and any
exchange notes issued in respect of such senior secured notes in accordance with
the terms of such indenture, as the same may have been amended, amended and
restated, supplemented or otherwise modified, (ii) the PIDA Loans (as defined in
the Existing Intercreditor Agreement), (iii) the Sunny Day Loans (as defined in
the Existing Intercreditor Agreement), (iv) the Indebtedness under the
Lackawanna Lenders Debt Instruments (as defined in the Existing Intercreditor
Agreement), (v) the Indebtedness under the Bethlehem Instruments (as defined in
the Existing Intercreditor Agreement), other than the instruments described in
subsections (i) through (v) and (viii) through (x) of such definition, (vi) the
Revolving Credit Facility (as defined in the Existing Intercreditor Agreement),
(vii) the RES Holding
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Company Credit Facility, RESI Credit Facility, RESI Bridge Facility and RESI
Refinanced State Debt (as each such term is defined in the Master Restructuring
Agreement) and (viii) the USS/Kobe Senior Notes, USS/Kobe Credit Facility and
USS/Kobe Refinanced State Debt (as each such term is defined in the Master
Restructuring Agreement).
1.94 "Responsible Officer" means, when used with respect to the
Collateral Agent, any officer in the Corporate Trust Department of the
Collateral Agent, including any vice president, assistant vice president,
assistant secretary, treasurer, assistant treasurer, or any other officer of the
Collateral Agent who customarily performs functions similar to those performed
by the persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such officer's knowledge of
and familiarity with the particular subject assigned to the corporate trust
office of the Collateral Agent and also means, with respect to any particular
corporate trust matter, any other officer of the Collateral Agent to which such
matter is referred because of his knowledge of and familiarity with the
particular subject.
1.95 "Secured Creditors" means, collectively, the Collateral Agent,
the Trustee, any holders from time to time of Notes Secured Obligations, any
Agent, any holders from time to time of Pennsylvania Lenders Secured
Obligations, any holders from time to time of any Government Assisted
Indebtedness Obligations, any holders from time to time of Notes Refinancing
Indebtedness and any holders from time to time of the New Bar Mill Lenders
Secured Obligations.
1.96 "Secured Obligations" means, collectively, the Notes Secured
Obligations, the Pennsylvania Lenders Secured Obligations, the Government
Assisted Indebtedness Obligations, the Notes Refinancing Indebtedness
Obligations, the Credit Agreement Obligations and the New Bar Mill Lenders
Secured Obligations.
1.97 "Secured Senior Creditors" means, collectively, (i) the
Pennsylvania Lenders, the Trustee, the holders of the Senior Secured Notes, the
Government Lenders, the Notes Refi-
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nancing Lenders, the New Bar Mill Lenders and any other person who is a holder
of any Senior Debt secured by any Collateral, (ii) any Senior Creditor having a
Lien on Accounts and/or Inventory, (iii) any Senior Creditor having a Lien on
the Cast-Roll Facility and (iv) any Senior Creditor whose Senior Debt is secured
by any other property or assets of the Company, and their respective successors
and assigns.
1.98 "Security Documents" means, collectively, the Notes Security
Documents, the Pennsylvania Lenders Security Documents, the New Bar Mill Lenders
Security Documents, the Credit Facility Security Documents, any Government
Lender Security Documents and any Notes Refinancing Security Documents.
1.99 "Security Interests" means, collectively, the Liens on the
Collateral created by the Security Documents in favor of the Collateral Agent,
on behalf of each of the Secured Creditors.
1.100 "Senior Creditor" means each person who holds Senior Debt.
1.101 "Senior Debt" means (i) all of the Secured Obligations, (ii)
all obligations, liabilities and indebtedness of the Company for principal,
interest, premiums, fees, charges, indemnities and expenses at any time and from
time to time owed by the Company under the Credit Facility (including, without
limitation, under currency or interest rate protection agreements entered into
with lenders or their affiliates under the Credit Facility and reimbursement
obligations with respect to letters of credit thereunder) (collectively, "Credit
Agreement Obligations"), (iii) all obligations, liabilities and Indebtedness of
the Company for principal, interest, premiums, fees, charges, indemnities and
expenses at any time and from time to time owed by the Company to any person who
provides loans, letters of credit or other financial accommodations used to
replace, substitute for or refinance all or any portion of the Secured
Obligations or Credit Agreement Obligations and (iv) to the extent not referred
to in clauses (i)-(iii) above, all obligations, liabilities and Indebtedness of
the Company for principal, interest, premium, fees, charges, indemnities and
expenses at any time and from time to time owed by the Com-
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pany to (A) financial institutional lenders, (B) the governments of the United
States, the Commonwealth of Pennsylvania, any other State in which any Pledgor
owns assets or conducts its business or any department, agency, division or
instrumentality thereof, (C) persons not included in clauses (A) or (B) who
extend credit or make loans to enable the Company to acquire an interest in the
"Assets" and "Liabilities" (as defined in the Contribution Agreement) or real or
personal property to be used in connection with the ownership or operation of
the Company's business, and (D) any replacement, substitution or refinancing of
any of the foregoing described in clauses (A), (B) or (C), in each case, as the
same may be modified, extended or supplemented from time to time.
1.102 "Senior Secured Notes" means the $425,000,000 principal amount
of 13 3/4% Senior Secured Notes Due 2009, Series A and Series B, co-issued by
the Company and RTI Capital and guaranteed by the Guarantors under the Indenture
and any exchange notes issued in respect of the Senior Secured Notes in
accordance with the terms of the Indenture, as the same may have been amended,
amended and restated, supplemented or otherwise modified.
1.103 "Shared Collateral" means any Collateral in which an Existing
Secured Creditor had been granted an Existing Lien pursuant to the applicable
Security Documents, but excluding in any event (i) the New Collateral and (ii)
the Excluded Collateral (other than BarTech Intellectual Property, which is
intended to be Shared Collteral). It is intended that no Secured Creditor other
than the Trustee, the holders of the Senior Secured Notes and the holders of any
Notes Refinancing Indebtedness shall have any Security Interest (directly or
through the Collateral Agent or otherwise) in any assets or properties that
would constitute Non-Shared Collateral.
1.104 "Trademarks" means, collectively, all of the applicable
Pledgor's 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
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and all (i) rights and privileges arising under applicable law with respect to
the applicable Pledgor's use of any trademarks, (ii) reissues, continuations,
extensions and renewals thereof, (iii) income, fees, royalties, damages and
payments now and hereafter due and/or payable under and 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.
1.105 "Trust Moneys" shall mean all cash or Cash Equivalents
received by the Collateral Agent in accordance with the terms of this Agreement,
the Debt Instruments and the Security Documents: (a) upon the release of
property from the Lien of any of the Security Documents, including, without
limitation, all moneys received in respect of the principal of all purchase
money, governmental and other obligations; or (b) as compensation for, or
proceeds of the sale of, all or any part of the Collateral taken by eminent
domain or purchased by, or sold pursuant to an order of, a governmental
authority or otherwise disposed of; or (c) as proceeds of insurance upon any,
all or part of the Collateral (other than any liability insurance proceeds
payable to the Collateral Agent for any loss, liability or expense incurred by
it); or (d) as proceeds of any other sale or other disposition of all or any
part of the Collateral by or on behalf of the Collateral Agent or any
collection, recovery, receipt, appropriation or other realization of or from all
or any part of the Collateral pursuant to the Security Documents or otherwise;
or (e) as elsewhere provided in any Debt Instrument or any Security Document, or
whose disposition is not elsewhere otherwise specifically provided for herein or
in any Security Document or any Debt Instrument and shall also include all money
or Cash Equivalents required by any Security Document or Debt Instrument to be
held by the Collateral Agent; provided that the Collateral Agent shall have
received notice of such requirements.
1.106 "UCC" means the Uniform Commercial Code as in effect from time
to time in any applicable jurisdiction.
2. RESTATEMENT OF EXISTING INTERCREDITOR AGREEMENT
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2.1 Each of the Pennsylvania Lenders and the Pledgors agrees that
this Agreement shall amend and restate the Existing Intercreditor Agreement to
the extent and as set forth herein.
3. APPOINTMENT OF COLLATERAL AGENT
3.1 The Trustee, on behalf of the holders of Notes Secured
Obligations, any Agent, the New Bar Mill Lenders and each Existing Secured
Creditor hereby designates and appoints the Collateral Agent, and the Collateral
Agent hereby accepts such designation and appointment to serve as Collateral
Agent for the Trustee and such other Secured Creditors in the manner and upon
the terms and conditions set forth herein and in the Security Documents. The
Trustee, on behalf of the holders of Notes Secured Obligations, any Agent, the
New Bar Mill Lenders and each Existing Secured Creditor hereby irrevocably
authorizes, and each other Secured Creditor, by its acceptance of any Senior
Secured Notes or of other instrument evidencing any Secured Obligations or the
benefit of any Debt Instrument, shall be deemed irrevocably to have authorized
the Collateral Agent, upon written instructions from the requisite Secured
Creditors provided for under Section 4.5, to take such action on behalf of such
Secured Creditors as such Secured Creditors may direct and as shall be permitted
to be taken under the provisions hereof and under the Security Documents,
including, without limitation, to foreclose or otherwise realize upon any
Collateral and, upon the specific direction of such Secured Creditors, to
otherwise enforce the Secured Creditors' rights in respect of the Collateral and
to initiate, prosecute and defend any and all legal proceedings against the
Pledgors or any other party (excluding the Secured Creditors) to any Security
Document relating to the Collateral.
4. SECURITY INTERESTS; PRIORITIES; REMEDIES
4.1 The Trustee, on behalf of the holders of Notes Secured
Obligations, any Agent, the New Bar Mill Lenders and each Existing Secured
Creditor hereby acknowledge that each such other Secured Creditor has been
granted a Lien upon some or all of the Collateral pursuant to the Security
Documents in effect on the date hereof, true and complete copies of which
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have been made available to such Secured Creditors and the Collateral Agent.
4.2 (a) Notwithstanding the order or time of attachment, or the
order, time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of perfecting a Lien
in favor of any Secured Creditor in any of the Collateral, and notwithstanding
any provisions of the UCC or any other applicable law or decision or whether any
Secured Creditor holds possession of all or any part of the Collateral, or the
granting provisions of any mortgage, security instrument or the provisions of
any financing statement or any conflicting terms or conditions which may be
contained in any of the Debt Instruments and Security Documents, each Secured
Creditor hereby acknowledges and agrees to the Liens in favor of the Secured
Creditors set forth below and the relative priorities thereof in respect of the
following categories of Collateral and that upon the sale or other disposition
by the Collateral Agent or its agents or employees of the following items of
Collateral pursuant to any of the Security Documents, the proceeds of such sale
or disposition shall be delivered by the Collateral Agent to the extent the
Secured Creditor is secured by such category of Collateral in accordance with
the following priorities:
(i) with respect to the Miscellaneous Collateral pledged by the
Company:
FIRST: The Trustee, for itself and the holders of the
Senior Secured Notes, with respect to the Notes
Secured Obligations, until satisfaction in full of
all such Notes Secured Obligations.
SECOND: (A) the City of Johnstown, Pennsylvania, with
respect to its Secured Obligations under the EDP
Loans, (B) the City of Johnstown, Pennsylvania,
with respect to its Secured Obligations under the
ECP Loans, (C) the County of Cambria,
Pennsylvania, with respect to its Secured
Obligations under the CDBG
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Loans and (D) the City of Johnstown, Pennsylvania
and the County of Cambria, Pennsylvania, with
respect to their Secured Obligations under the
PA 108 Loans, until satisfaction in full of all
such Secured Obligations under the EDP Loans, the
ECP Loans, the CDBG Loans and the PA 108 Loans.
(ii) with respect to Modernization Equipment:
FIRST: The Trustee, for itself and the holders of the
Senior Secured Notes, with respect to the Notes
Secured Obligations, until satisfaction in full of
all such Notes Secured Obligations.
SECOND: The Johnstown Industrial Development Corporation,
with respect to its Secured Obligations under the
BID Loans, until satisfaction in full of all such
Secured Obligations under the BID Loans.
THIRD: (A) The City of Johnstown, Pennsylvania, with
respect to its Secured Obligations under the ECP
Loans, (B) the County of Cambria, Pennsylvania,
with respect to its Secured Obligations under the
CDBG Loans, and (C) the County of Cambria,
Pennsylvania, and the City of Johnstown,
Pennsylvania, with respect to their Secured
Obligations under the PA 108 Loans, until
satisfaction in full of all such Secured
Obligations under the ECP Loans, the CDBG Loans
and the PA 108 Loans.
(iii) with respect to Other Johnstown Equipment:
FIRST: The Trustee, for itself and the holders of Senior
Secured Notes, with re-
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spect to the Notes Secured Obligations, until
satisfaction in full of the Notes Secured
Obligations.
SECOND: (A) The City of Johnstown, Pennsylvania, with
respect to its Secured Obligations under the EDP
Loans, (B) the City of Johnstown, Pennsylvania,
with respect to its Secured Obligations under the
ECP Loans, (C) the County of Cambria,
Pennsylvania, with respect to its Secured
Obligations under the CDBG Loans, and (D) the City
of Johnstown, Pennsylvania, and the County of
Cambria, Pennsylvania, with respect to their
Secured Obligations under the PA 108 Loans, until
satisfaction in full of all such Secured
Obligations under the EDP Loans, the ECP Loans,
the CDBG Loans and the PA 108 Loans.
(iv) with respect to Johnstown Real Estate:
FIRST: The Trustee, for itself and the holders of the
Senior Secured Notes, and the Notes Secured
Obligations, until satisfaction in full of all
such Notes Secured Obligations.
SECOND: The Johnstown Industrial Development Corporation,
with respect to its Secured Obligations under the
BID Loans, until satisfaction in full of all such
Secured Obligations under the BID Loans, but only
to the extent of the Real Estate Fixtures in which
the Johnstown Industrial Development Corporation
has a Security Interest.
THIRD: (A) The City of Johnstown Pennsylvania, with
respect to its Secured Obligations under the EDP
Loans, (B) the
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Xxxx xx Xxxxxxxxx, Xxxxxxxxxxxx, with respect to
its Secured Obligations under the ECP Loans,
(C) the county of Cambria, Pennsylvania, with
respect to its Secured Obligations under the CDBG
Loans, and (D) the City of Johnstown, Pennsylvania
and the County of Cambria, Pennsylvania, with
respect to their Secured Obligations under the PA
108 Loans, until satisfaction in full of all such
Secured Obligations under the EDP Loans, the ECP
Loans, the CDBG Loans and the PA 108 Loans.
(v) with respect to the Other Collateral:
FIRST: The Trustee, for itself and the holders of the
Senior Secured Notes, with respect to the Notes
Secured Obligations, until satisfaction in full of
all such Notes Secured Obligations.
(vi) with respect to the Acquisition Document Rights constituting
Shared Collateral (excluding, in any event, the Acquisition Document
Rights under or relating to the B&L Merger Agreement, the RES Merger
Agreement and the Master Restructuring Agreement):
FIRST: The Trustee, for itself and the holders of the
Senior Secured Notes, with respect to the Notes
Secured Obligations, until satisfaction in full of
all such Notes Secured Obligations.
SECOND: The Johnstown Industrial Development Corporation,
with respect to its Secured Obligations under the
BID Loans, until satisfaction in full of all such
Secured Obligations and the BID Loans.
THIRD: (A) The City of Johnstown, Pennsylvania, with
respect to its Secured Obli-
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gations under the EDP Loans, (B) the City of
Johnstown, Pennsylvania, with respect to its
Secured Obligations under the ECP Loans, (C) the
County of Cambria, Pennsylvania, with respect to
its Secured Obligations under the CDBG Loans, and
(D) the City of Johnstown, Pennsylvania, and the
County of Cambria, Pennsylvania, with respect to
their Secured Obligations under the PA 108 Loans,
until satisfaction in full of all such Secured
Obligations under the EDP Loans, the ECP Loans,
the CDBG Loans and the PA 108 Loans.
(vii) with respect to the Intellectual Property of the Company to the
extent constituting Shared Collateral:
FIRST: The Revolver Agent, with respect to the applicable
Credit Agreement Obligations, until satisfaction in
full of all such Credit Agreement Obligations.
SECOND: The Johnstown Industrial Development Corporation, with
respect to its Secured Obligations under the BID Loans,
until satisfaction in full of all such Secured
Obligations and the BID Loans.
THIRD: (A) The City of Johnstown, Pennsylvania, with respect to
its Secured Obligations under the EDP Loans, (B) the
City of Johnstown, Pennsylvania, with respect to its
Secured Obligations under the ECP Loans, (C) the County
of Cambria, Pennsylvania, with respect to its Secured
Obligations under the CDBG Loans, and (D) the City of
Johnstown, Pennsylvania, and the County of Cambria,
Pennsylvania, with respect to their Secured Obligations
under the PA 108 Loans, until satisfaction in full of
all such Secured Obligations under
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the EDP Loans, the ECP Loans, the CDBG Loans and the PA
108 Loans.
(viii) with respect to the Intellectual Property (other than the
Intellectual Property of the Company constituting Shared Collateral):
FIRST: The Revolver Agent or the Term Agent, as applicable,
with respect to the applicable Credit Agreement
Obligations, until satisfaction in full of all such
Credit Agreement Obligations.
(ix) with respect to the New Bar Mill:
FIRST: The New Bar Mill Lenders, with respect to the New Bar
Mill Lenders Secured Obligations, until satisfaction in
full of all such New Bar Mill Lenders Secured
Obligations.
SECOND: The Trustee, for itself and the holders of the Senior
Secured Notes, with respect to the Notes Secured
Obligations, until satisfaction in full of all such
Notes Secured Obligations.
(x) with respect to Collateral Accounts and Collateral Account
Funds:
Each Secured Creditor shall have the same Lien priority in the
Collateral Account and Collateral Account Funds held by the
Collateral Agent in respect of any category of Collateral as such
Secured Creditor has in the category of Collateral as to which such
Collateral Account and Collateral Account Funds relates.
(b) Notwithstanding anything contained in any Debt Instrument or
Security Document to the contrary, each Existing Secured Creditor hereby
expressly disclaims and releases any and all of its Security Interests in the
Non-Shared Collateral and the related Collateral Account and Collateral Account
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Funds. Each Existing Secured Creditor agrees to execute such documents and
instruments and make such filings, including, without limitation, UCC filings,
at the reasonable request of the Trustee to secure fully the purpose and intents
of this paragraph.
(c) To the extent that more than one Secured Creditor is listed with
respect to any of the priority rankings on any category of Collateral set forth
in Section 4.2(a), such Liens of each such Secured Creditor shall rank pari
passu (without any preference or priority whatsoever and on a pro rata basis)
among each Secured Creditor specified within a given priority ranking for such
category of Collateral.
4.3 The Lien priorities and provisions provided in Section 4.2(a)
shall not be altered or otherwise affected by any amendment, modification or
supplement to any Debt Instrument or Security Document nor by any action or
inaction which any Secured Creditor may take or fail to take in respect of the
Collateral or otherwise.
4.4 Each Secured Creditor shall be solely responsible for perfecting
and maintaining the perfection of its Lien in and to each item constituting the
Collateral in which such Creditor has been granted a Lien. Subject to Section
7.3, the Collateral Agent shall take all action reasonably requested in writing
by a Secured Party to perfect and maintain the Lien(s) of such Secured Party in
and to such Collateral. The Collateral Agent shall not file any amendments,
assignments or terminations with respect to any UCC financing statement without
the prior written consent of the applicable Secured Creditor; provided, however,
that the Existing Secured Creditors hereby authorize the Collateral Agent to
execute and file any continuations of and amendments to any applicable UCC
financing statements necessary to effect the provisions of this Agreement.
4.5 Notwithstanding anything to the contrary contained in any of the
Debt Instruments or Security Documents, as among the Secured Creditors, the
First Priority Majority Security Creditors as to any Collateral shall have the
exclusive right to direct the Collateral Agent to manage, perform and en-
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force the terms of the Security Documents to which they are a party with respect
to all such Collateral, to exercise and enforce all privileges and rights
thereunder according to their discretion and the exercise of their business
judgment, including, without limitation, the exclusive right, as against the
other Secured Creditors, to take or retake control or possession of such
Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or
liquidate such Collateral.
4.6 Notwithstanding anything to the contrary contained in any of the
Debt Instruments or Security Documents or herein, only the First Priority
Majority Secured Creditors with respect to an item of Collateral shall have the
right to direct the Collateral Agent to restrict or permit, or approve or
disapprove, the sale, transfer, lease, liquidation or other disposition of such
Collateral. Upon any such sale, transfer, lease, liquidation or other
disposition of Collateral, the proceeds therefrom, subject to Section 4.12
hereof, shall be delivered by the Collateral Agent to the Secured Creditors in
accordance with Section 4.2 within a reasonable time thereafter. Each other
Secured Creditor shall, immediately upon the request of the First Priority
Majority Secured Creditors with respect to an item of Collateral, release or
otherwise terminate its Liens on any or all such Collateral to the extent such
Collateral is sold or otherwise disposed of either by the Collateral Agent, its
agents, or, after an Event of Default under the Debt Instruments or Security
Documents to which such First Priority Majority Secured Creditors are a party,
by a Pledgor with the consent of such requesting First Priority Majority Secured
Creditors; and each other Secured Creditor shall immediately deliver such
release documents as the First Priority Majority Secured Creditors making the
release request may require in connection therewith.
4.7 Notwithstanding any rights or remedies available to a Secured
Creditor under any of the Debt Instruments or Security Documents, applicable law
or otherwise, the Secured Creditors (other than, with respect to an item of
Collateral, the First Priority Majority Secured Creditors by direction to the
Collateral Agent) shall not, directly or indirectly, (a) seek to foreclose or
realize upon (judicially or non-judicially) its Lien on any Collateral or assert
any claims or
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interests therein (including, without limitation, by setoff or notification of
account debtors) or (i) take any other enforcement action against or in respect
of the Collateral. The foregoing shall not in any way limit or impair the right
of any Secured Creditor from (i) commencing, pursuing, discontinuing, settling
or compromising any legal action against Pledgors or any of them (A) seeking a
money judgment for payments owed under any Debt Instruments held by such Secured
Creditor, whether arising as a result of acceleration of maturity of such Debt
Instruments or otherwise, or (B) seeking declaratory or injunctive relief
against the Pledgors or any of them; (ii) commencing, pursuing, discontinuing,
settling or compromising any petition, action, suit or proceeding, howsoever
styled, relating to the Pledgors or any of them or any of the Debt Instruments
or holders thereof under any Bankruptcy Law; or (iii) bidding for and purchasing
Collateral at any private or judicial foreclosure upon such Collateral initiated
by any of the other Secured Creditors, as permitted herein.
4.8 Each of the Secured Creditors shall have the right, but not any
obligation, to cure for any Pledgor's account, any Event of Default, but without
thereby assuming any other or further obligation, liability or Indebtedness to
any other person.
4.9 Each Secured Creditor agrees that (i) all amounts realized or
recovered upon the enforcement by the Collateral Agent (as permitted herein) of
any Lien upon the Collateral shall be delivered to or shared among the Secured
Creditors in the order of their Lien priorities set forth in Section 4.2(a) as
to such Collateral giving rise to such amounts realized or recovered and (ii)
the Secured Creditors shall not, without the prior written consent of the First
Priority Majority Secured Creditors with respect to any item of Collateral,
commence, or, if already commenced with such consent, such Secured Creditors
shall immediately cease, any enforcement efforts by such Secured Creditors with
respect to any Collateral upon notice from the First Priority Majority Secured
Creditors with respect to such Collateral.
4.10 If any Government Assisted Refinancing Indebtedness refinances
any Secured Obligations of a Secured Creditor
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with respect to any item of Collateral secured by any Existing Liens, then, upon
the execution and delivery by the applicable Government Lender of the
Undertaking attached hereto as Exhibit A, such Government Lender shall become a
party hereto and shall be entitled to the same benefits, and shall have the same
obligations, hereunder with respect to such Collateral as the Secured Creditor
secured by such Existing Lien, and unless otherwise agreed by the parties hereto
(other than the Trustee whose consent need not be obtained solely by reason of
this Agreement), including the applicable Government Lender, such Government
Assisted Refinancing Indebtedness shall be secured by a Lien or Liens on such
Collateral of the same priority (subject to the proviso of the definition of
Government Assisted Refinancing Indebtedness) as the Existing Liens securing the
Secured Obligations so refinanced as set forth in Section 4.2. If any Pledgor
incurs any New Government Assisted Indebtedness which is to be secured (subject
to the proviso of the definition of New Government Assisted Indebtedness) by an
item of Collateral (and permitted by the applicable Debt Instruments and this
Agreement), then, upon execution and delivery by the applicable Government
Lender of the Undertaking attached hereto as Exhibit A, such Government Lender
shall be entitled to a priority junior in right of payment to all other Secured
Creditors secured by a Lien on such item of Collateral, which priority shall be
evidenced by such Undertaking and shall make such Government Lender subject to
all of the terms and provisions of this Agreement applicable to a Secured
Creditor with an interest in such item of Collateral and having the priority
evidenced in that Undertaking. No consent shall be required to effect the
Undertaking in respect of New Government Assisted Indebtedness.
4.11 If the Notes Refinancing Indebtedness refinances the Notes
Secured Obligations, then, upon execution and delivery by the Notes Refinancing
Lenders of the Undertaking attached hereto as Exhibit A, such Notes Refinancing
Lenders shall become a party hereto and shall be entitled to the benefits, and
shall have the obligations, hereunder as the Notes Representative and the
holders of Senior Secured Notes (as applicable) and unless otherwise agreed by
the parties hereto (including the Notes Refinancing Lenders), such Notes
Refinanc-
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ing Indebtedness shall be secured by Liens on each category of Collateral with
the same priority as the Liens securing the Notes Secured Obligations.
4.12 If the New Bar Mill Loans are made or to be made by the New Bar
Mill Lenders, then, upon execution and delivery by the New Bar Mill Lenders of
the Undertaking attached hereto as Exhibit A, such New Bar Mill Lenders shall
become a party hereto and shall be entitled to the benefits, and shall have the
obligations, set forth herein and unless otherwise agreed by the parties hereto
(including the New Bar Mill Lenders), the New Bar Mill Lenders Secured
Obligations shall be secured by Liens on each category of Collateral and with
the priority of the Lien securing such Collateral set forth in Section 4.2. No
consent shall be required to effect the Undertaking in respect of New Bar Mill
Lenders Secured Obligations.
4.13 Notwithstanding any other provision of this Section 4, the
proceeds from any sale or other disposition of Collateral shall be applied first
to the payment of any and all obligations of the Collateral Agent hereunder,
including obligations to compensate and indemnify the Collateral Agent pursuant
to Section 8 hereof.
4.14 If there remains any deficiency between (i) the aggregate
amount of the proceeds of the sale or other disposition of Collateral
indefeasibly paid in cash in reduction of Secured Obligations pursuant to
Section 4.2 and (ii) the aggregate of all Secured Obligations secured by such
Collateral, then the applicable Pledgor or any other obligor, as the case may
be, shall remain liable to the persons specified therein remaining unpaid to the
extent of such deficiency.
4.15 If any sale of Collateral by the Collateral Agent pursuant to
the terms hereof involves (i) more than one Category of Collateral (as defined
below) and (ii) yields proceeds which, depending upon the allocation of such
proceeds, may result in the partial satisfaction of Secured Obligations of any
Secured Creditor, then (x) the Secured Creditors who may be entitled to have
such proceeds applied to their Secured Obligations shall, for a period of 30
days following receipt of such proceeds by the Collateral Agent, negotiate in
good faith
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to reach agreement on the allocation of such proceeds among their Secured
Obligations and (y) if such Secured Creditors shall fail to reach agreement
during such 30-day period, any such Secured Creditor may thereafter require the
Collateral Agent to select an Independent Appraiser or, if such Collateral
consists in whole or in part of securities, an Independent Financial Advisor to
perform an appraisal (the "Appraisal") of the Fair Market Value of each Category
of Collateral (assuming each such Category of Collateral was sold separately and
was unrelated to each other Category of Collateral). The Appraisal shall be
binding upon each such Secured Creditor absent fraud. The proceeds of the sale
of such Collateral allocated to each Category of Collateral shall be equal to
the percentage obtained by dividing the Fair Market Value of such Category of
Collateral (as determined by the Appraisal) by the Fair Market Value of all the
Collateral sold (as determined by the Appraisal). As so allocated, the proceeds
shall be delivered to satisfy the Secured Obligations of the Secured Creditors
with Liens on each such Category of Collateral pursuant to the provisions of
Section 4.2 and Section 4.6.
As used herein, "Category of Collateral" means each of the
classifications of the Collateral set forth in Section 4.2(a)(i)-(x).
4.16 Limitations. Notwithstanding any other provision hereof to the
contrary, but subject to any direction from a court of competent jurisdiction
(which may be sought by the Collateral Agent at the Pledgors' expense), the
powers granted to the Collateral Agent hereunder shall not include, and shall
not be deemed or construed to include: (i) entering into or providing written
consent to any agreement, understanding or course of dealing under which any
payments are made upon a sale or disposition of Collateral (whether pursuant to
a liquidation of any Pledgor or otherwise) to the holder of any Secured
Obligations at a time when the holder of any other Secured Obligations having a
senior priority with respect to such Collateral pursuant to Section 4.2(a)
hereof has not received any payment due to it and to which it is entitled and
has notified the Collateral Agent in writing of such non-receipt; or (ii)
entering into or providing written consent to any agreement, understanding or
course of dealing purporting to release, compromise or
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otherwise adversely affect any rights the holder of any Secured Obligations
shall have with respect to any Collateral pursuant to a Security Document,
except pursuant to the direction of the holders of such Secured Obligations
given in accordance with Section 7.
5. COVENANTS AND WAIVERS
5.1 Waivers. Notice of acceptance hereof, the making of loans,
advances and extensions of credit or other financial accommodations to, and the
incurring of any expenses by or in respect of, any Pledgor by Secured Creditors,
and presentment, demand, protest, notice of protest, notice of nonpayment or
default and all other notices to which Secured Creditors and any Pledgor are or
may be entitled are hereby waived (except as expressly provided for herein or,
as to any Pledgor, in the respective Debt Instruments and Security Documents).
All of the Secured Obligations shall be deemed to have been made or incurred in
reliance upon this Agreement.
5.2 No Subrogation; Waiver of Marshaling. No Secured Creditor shall
be subrogated to, or be entitled to any assignment of, any Secured Obligations
or of any Collateral or guarantees or evidence of any thereof. Each Secured
Creditor hereby waives any and all rights to have any Collateral or any part
thereof granted to any of the Secured Creditors marshalled upon any foreclosure
or other disposition of such Collateral by any Secured Creditor or, after an
Event of Default under the Debt Instruments and Security Documents to which the
First Priority Majority Secured Creditors are a party, by a Pledgor with the
consent of the First Priority Majority Secured Creditors entitled under these
Debt Instruments and Security Documents to consent thereto.
6. NATURE OF DUTIES OF COLLATERAL AGENT
6.1 The Collateral Agent shall be responsible for taking only such
actions as are expressly set forth herein or in any written instructions
received from any Secured Creditor (subject to Sections 7 and 11 hereof)
pursuant to the terms hereof and any Security Document (and the Collateral Agent
shall be entitled to presume that any such instructions are
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given in compliance with the provisions of any such Security Document) and no
implied duties or obligations shall be read into this agreement or any such
instructions or Security Document. The entities of the Collateral Agent shall be
mechanical and administrative in nature; the Collateral Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any Secured
Creditor. Notwithstanding any provision in any Secured Document, neither the
Collateral Agent nor any of its officers, directors, employees or agents shall
be liable for any claims, losses, damages, penalties, actions, judgments, suits,
liabilities, obligations, costs or expenses of any kind or nature whatsoever
resulting from any action the Collateral Agent takes or omits to take under any
Security Document or in connection herewith, unless determined by a court of
competent jurisdiction by final and nonappealable judgment to have been caused
by its or their gross negligence, bad faith or willful misconduct. The
Collateral Agent may perform any of its duties hereunder by or through its
agents or employees.
7. EXERCISE OF REMEDIES UNDER SECURITY DOCUMENTS
7.1 Notices. If the Trustee, on behalf of the holders of Senior
Secured Notes, or any other Secured Creditor has notice of (i) an Event of
Default under any of the Debt Instruments or (ii) any request from any other
Secured Creditor to declare the principal of any Secured Obligations held by
such Secured Creditor to be due and payable following the occurrence of an Event
of Default under any of the Debt Instruments governing Secured Obligations, the
Trustee and such other Secured Creditors shall promptly give notice to the other
Secured Creditors and to the Collateral Agent, and absent notice given in
accordance with the foregoing provisions, the Collateral Agent shall not be
deemed to have knowledge of any such Event of Default. During the occurrence and
continuance of an Event of Default, upon receipt by the Collateral Agent from
the First Priority Majority Secured Creditors of written instructions to the
Collateral Agent as to any actions to be lawfully taken by the Collateral Agent,
the Collateral Agent shall promptly, but in no event later than five Business
Days after receipt of such notice and instructions (to the extent practicable),
commence the taking of such actions toward collection or enforcement of any
Security Document and Collateral (or any portion thereof),
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including, without limitation, action toward foreclosure upon any Collateral, as
specifically instructed in writing by the First Priority Majority Secured
Creditors. The First Priority Majority Secured Creditors shall have the right to
select any counsel or other agents to be retained in connection with any action
relating to the Collateral; provided, that such counsel and agents are
reasonably satisfactory to the Collateral Agent. Any instructions given to the
Collateral Agent by the First Priority Majority Secured Creditors shall be
simultaneously given to all other Secured Creditors. The Collateral Agent, upon
receipt of any written notice from any Secured Creditor provided to it under
this subsection, shall immediately provide a copy thereof to the other Secured
Creditors and to each Pledgor. The Collateral Agent shall give notice of any
legal action or proceeding of which it has been notified in writing naming the
Collateral Agent as party relating to this Agreement, the Collateral or the
Collateral Agent's duties hereunder.
7.2 Duty to Instruct. Subject to Section 7.1 and this Section 7.2,
if the Collateral Agent is authorized under any Security Document to request
instructions from the Trustee, on behalf of the holders of Senior Secured Notes,
or any other Secured Creditor as to whether or not to take any action toward
enforcement of any Security Document, the Trustee and such other Secured
Creditors may, but shall not be obligated to, give such instructions, subject to
the terms of the applicable Debt Instruments. If an Event of Default has
occurred and is continuing under any Debt Instrument, and the First Priority
Majority Secured Creditors have given instructions pursuant to Section 7.1
hereof in connection therewith, such First Priority Majority Secured Creditors
shall continue to specifically instruct the Collateral Agent as to the actions
that should be taken by the Collateral Agent, if any, toward foreclosure or
otherwise on the Collateral that such First Priority Majority Secured Creditors
deem appropriate in their discretion or as requested by the Collateral Agent. In
no event shall any Secured Creditor direct the exercise by the Collateral Agent
of any remedy which would result in the discharge of any of the Secured
Obligations by reason of any anti-deficiency statute or
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law relating to sales of Collateral other than through judicial proceedings.
7.3 Rights of Collateral Agent.
(i) Right to Rely. The Collateral Agent may rely on any documents
reasonably believed by it to be genuine and to have been signed or presented by
the proper person. The Collateral Agent need not investigate any fact or matter
stated in any such document. Before the Collateral Agent acts or refrains from
acting it may consult with counsel and may require an Officers' Certificate or
an Opinion of Counsel. The Collateral Agent shall not be liable for any action
it takes or omits to take in good faith in reliance upon any such certificate or
opinion.
(ii) Attorneys/Agents. The Collateral Agent may act through its
attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(iii) Good Faith Belief in Authority, Rights or Powers. The
Collateral Agent shall not be liable for any action it takes or omits to take in
the good faith belief that such act or omission was authorized or within its
rights or powers conferred upon it hereunder or under the Security Documents.
(iv) No Investigation. The Collateral Agent shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness or other
paper or document, but the Collateral Agent, upon specific written instructions
from any Secured Creditor, may make such further inquiry or investigation into
such facts or matters in accordance with such instructions.
(v) Obligation to Act upon Instructions. The Collateral Agent shall
be under no obligation to exercise any of the rights or powers vested in it by
any Security Document at the request, order or direction of any Secured
Creditor, unless the Collateral Agent shall have been provided security or
in-
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demnity satisfactory to the Collateral Agent in its sole discretion and from any
source acceptable to the Collateral Agent against the costs, expenses and
liabilities which might be incurred by it in compliance with such request, order
or direction. Upon receipt of such security or indemnity, however, and subject
to the other rights of the Collateral Agent under this Section 7, the Collateral
Agent shall act upon the specific instructions of Secured Creditors in
accordance with the provisions of this Agreement. Notwithstanding the foregoing,
the Collateral Agent shall not be obligated to take such action if such action
would violate the terms of this Agreement, the Debt Instruments or the Security
Documents or is contrary to law.
(vi) Right to Require Information. In order to ascertain whether or
not Secured Creditors giving any direction or instructions hereunder represent
the requisite principal amount of Secured Creditors or whether any Indebtedness
is outstanding at any time or to make any other determination relating to
actions to be taken or not taken under or in respect of any Debt Instrument or
Security Document, the Collateral Agent may, as a condition of taking any
action, require such Officers' Certificates from the Company or any other
Pledgor under the Security Documents or written information from any Secured
Creditors that is appropriate to make any such determination.
8. COMPENSATION AND INDEMNIFICATION
8.1 Compensation and Expenses. Each Pledgor agrees to pay, without
duplication, to the Collateral Agent, from time to time upon demand, reasonable
compensation for the services of the Collateral Agent hereunder and under the
Security Documents and all reasonable fees, costs and out-of-pocket expenses of
the Collateral Agent (including, without limitation, the reasonable expenses,
fees and disbursements of counsel, agents and experts of the Collateral Agent
upon presentation of reasonably detailed statements describing their services)
incurred by the Collateral Agent or arising in connection with (i) the
preparation, execution, delivery, administration, modification, amendment or
termination of this Agreement and each Security Document or the enforcement of
any of the provisions hereof or thereof,(ii) the custody or preservation and
protection of, or the sale of, collection from, or other realization upon, any
of
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the Collateral pursuant to this Agreement and any Security Document, (iii) the
preservation, protection, defense, exercise or enforcement of any of the rights
of the Collateral Agent under this Agreement and the Security Documents and in
and to the Collateral or (iv) the failure by a Pledgor to perform or observe any
of the provisions of this Agreement or any Security Document. When the
Collateral Agent incurs expenses or renders services after an Event of Default
specified in Section 6.1(k) or Section 6.1(l) of the Indenture or in any similar
provision of any other Debt Instrument, such expenses and the compensation for
such services are intended to constitute expenses of administration under any
Bankruptcy Law.
8.2 Stamp and Other Taxes. Each Pledgor hereby agrees to pay or to
indemnify the Collateral Agent and each Secured Creditor for, and hold each of
them harmless against, any present or future claim for liability for any stamp,
transfer or other similar tax and any penalties or interest with respect
thereto, which may be assessed, levied or collected by any jurisdiction in
connection with this Agreement or any Security Document or any Collateral.
8.3 Filing Fees, Excise Taxes, Etc. Each of the Pledgors hereby
agrees to pay or to reimburse the Collateral Agent for any and all amounts in
respect of all search, filing, recording and registration fees, taxes
(including, without limitation, any franchise taxes imposed upon the Collateral
Agent in any jurisdiction), excise taxes and other similar imposts which may be
payable or determined to be payable in respect of the execution, delivery,
performance and enforcement of this Agreement and each Security Document.
8.4 Indemnification of Collateral Agent. The Pledgors, jointly and
severally, agree to indemnify the Collateral Agent for, and hold it harmless
against, any and all claims, demands, expenses (including, but not limited to,
reasonable compensation, disbursements and out-of-pocket expenses of the
Collateral Agent's agents, experts and counsel upon presentation of reasonably
detailed statements thereof describing their services), losses, obligations,
damages, penalties, actions, judgments, suits, costs, liabilities or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by
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or asserted against the Collateral Agent in its capacity as such, in any way
relating to or arising out of or in connection with the acceptance and
administration of this Agreement, the Debt Instruments, the Security Documents
or any other documents contemplated by or referred to herein or therein or in
connection with any of its rights and duties hereunder or under any Security
Document or the transactions contemplated hereby or thereby or the enforcement
of any of the terms hereof or thereof or of any such other document or otherwise
arising or relating in any manner to the pledges and security interests
contemplated hereunder, under the Debt Instruments and the Security Documents.
The Collateral Agent shall notify the Pledgors promptly of any claim asserted
against the Collateral Agent for which it may seek indemnity; provided that the
Collateral Agent's failure to notify a Pledgor of any such claim shall not
affect the Collateral Agent's right to indemnification. The Pledgors shall
defend any such claim and the Collateral Agent shall provide reasonable
cooperation at the expense of the Pledgors in such defense. Except as set forth
in the following proviso, the Collateral Agent shall have separate counsel and
the Pledgors shall pay the reasonable fees and expenses of such counsel;
provided that the Pledgors will not be required to pay such fees and expenses if
it assumes the Collateral Agent's defense and provides the Collateral Agent with
an Opinion of Counsel that there is no conflict of interest between the Pledgors
and the Collateral Agent in connection with such defense and acknowledges in
writing its obligation to indemnify the Collateral Agent for all losses or
liabilities arising out of such claim. The Pledgors need not pay for any
settlement made without their written consent. The Pledgors need not reimburse
any expense or indemnify against any loss or liability to the extent incurred by
the Collateral Agent, its agents or attorneys through their gross negligence,
bad faith or willful misconduct. The Pledgors hereby agree to pay, and to hold
the Collateral Agent and the Secured Creditors harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
excise, sales or other taxes (including, without limitation, any franchise taxes
imposed upon the Collateral Agent in any jurisdiction) that may be payable or
determined to be payable with respect to any of the Collat-
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eral or in connection with any of the transactions contemplated by this
Agreement or any Security Document.
8.5 Survival of Obligations. All obligations set forth in this
Section 8 shall survive the execution, delivery and termination of this
Agreement and the Security Documents and the payment of all Secured Obligations.
9. COLLATERAL AGENT'S DEALINGS WITH THE PLEDGORS
9.1 The Collateral Agent may accept deposits from, lend money to, or
generally engage in any kind of banking, trust or other business with the
Pledgors or any of their Affiliates, in each case as if it were not the
Collateral Agent hereunder.
10. RESIGNATION BY OR REMOVAL OF THE COLLATERAL AGENT
10.1 Resignation, Removal. The Collateral Agent may resign from the
performance of all its functions and duties hereunder and under the Security
Documents at any time by giving 20 Business Days' prior written notice to the
Pledgors and the Secured Creditors. The Secured Creditors holding an aggregate
principal amount of Indebtedness representing a majority of the aggregate
principal amount of Indebtedness outstanding under the Debt Instruments, or
their authorized representatives (the "Majority Secured Creditors"), may, at any
time, remove the Collateral Agent by giving 20 Business Days' prior written
notice to the Collateral Agent, the Pledgors and each Secured Creditor.
Notwithstanding the giving of any notice provided for in this Section 10.1, such
resignation or removal shall take effect upon the appointment of a successor
Collateral Agent pursuant to Section 10.2 or 10.3 below or as otherwise provided
below.
10.2 Appointment of Successor. Upon any such notice of resignation
or removal, the Majority Secured Creditors shall appoint a successor Collateral
Agent hereunder, which shall be an Acceptable Bank. If a successor Collateral
Agent shall not have been so appointed within the period specified in Section
10.1, the Pledgors shall then appoint a successor Collateral Agent which shall
be an Acceptable Bank and which shall serve as Collateral Agent hereunder until
such time, if any, as the Majority Secured Creditors appoint a successor
Collateral
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Agent as provided above. If no successor Collateral Agent shall have been so
appointed by the Pledgors or the Majority Secured Creditors and accepted
appointment in the manner herein provided, the Collateral Agent or Secured
Creditors holding at least 25% of the aggregate outstanding principal amount of
Indebtedness outstanding under the Debt Instruments may petition any court of
competent jurisdiction for the appointment of a successor Collateral Agent.
10.3 Effectiveness of Resignation or Removal. A successor Collateral
Agent shall deliver a written acceptance of its appointment to the retiring
Collateral Agent, to the Pledgors and to each Secured Creditor. Immediately
thereafter, the retiring Collateral Agent shall transfer all property held by it
as Collateral Agent to the successor Collateral Agent, and shall execute and
deliver to the successor Collateral Agent such documents as are necessary to
perfect or maintain the Security Interests, including any documents necessary to
assign or transfer all interests of the retiring Collateral Agent in the
Collateral to the successor Collateral Agent, in the form or forms adequate for
proper filing or recording in such offices and such jurisdictions as are
necessary to put the successor Collateral Agent in the same position as was the
retiring Collateral Agent with respect to the Collateral. All expenses incurred
in connection with the resignation or removal of any Collateral Agent shall be
borne by the Pledgors. Thereafter, the resignation or removal of the retiring
Collateral Agent shall become effective and the successor Collateral Agent shall
have all the rights, powers and duties of the Collateral Agent under this
Agreement. Any successor Collateral Agent shall give or cause to be given notice
of its succession to each Secured Creditor as of the date of such succession.
10.4 Consolidation, Merger, Etc. If the Collateral Agent
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is an Acceptable Bank, be
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the successor Collateral Agent. The transferring, merging or converting
Collateral Agent shall have all documents necessary to perfect or maintain the
Security Interests, including any documents necessary to assign or transfer all
interests of the transferring, merging or converting Collateral Agent in the
Collateral, executed and delivered to it in the form or forms adequate for
proper filing or recording in such offices and such jurisdictions as are
necessary to put the successor Collateral Agent in the same position as the
transferring, merging or converting Collateral Agent with respect to the
Collateral.
10.5 Compensation and Indemnification Continuing. Any Acceptable
Bank acting as Collateral Agent shall continue to be entitled to receive
compensation and indemnification as provided in Section 8 hereof so long as such
Acceptable Bank acts as Collateral Agent hereunder.
11. RELEASE OR SUBSTITUTION OF COLLATERAL; INVESTMENT OF CASH
COLLATERAL; INSURANCE PROCEEDS.
11.1 Instructions from the Secured Creditors; Segregation of
Proceeds, Etc. With respect to a release of Collateral other than pursuant to an
enforcement action with respect to Collateral pursuant to Section 4.6, the
Collateral Agent shall effect such release, or a substitution of Collateral, in
accordance with and upon receipt of (x) written instructions from the Trustee,
on behalf of the holders of Senior Secured Notes, and each other Secured
Creditor known to the Collateral Agent to hold a Security Interest in such
Collateral and (y) an Officers' Certificate of the applicable Pledgor to the
effect that such release or substitution would be permitted under the terms of
the Debt Instruments and Security Documents. The applicable Pledgor agrees to
give written notice of a proposed release or substitution of Collateral to the
Trustee, on behalf of the holders of Senior Secured Notes, and each other
Secured Creditor and the Collateral Agent at least 10 Business Days prior to any
release or substitution by the Collateral Agent specifying the Business Day upon
which such release or substitution is to be effected, which notice shall be
accompanied by the written instructions from the Secured Creditors and the
Officers' Certificate referred to above.
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11.2 Trust Moneys. The Collateral Agent shall establish and maintain
segregated Collateral Accounts with respect to each category of Collateral set
forth in Section 4.2 of this Agreement on behalf of the Secured Creditors having
a Lien on such category of Collateral as set forth in Section 4.2 of this
Agreement. All Trust Moneys received by the Collateral Agent in respect of any
category of Collateral set forth in Section 4.2 of this Agreement shall be held
in the appropriate Collateral Account on behalf of the Secured Creditors having
a Lien on such category of Collateral as set forth in Section 4.2 of this
Agreement. The Collateral Agent shall invest any Trust Moneys received by it
from time to time in such permitted investments in accordance with the specific
written direction received by the Company or another Pledgor in respect of such
permitted investment pursuant to the Debt Instruments governing the then
outstanding Secured Obligations. The Collateral Agent shall release Trust Moneys
held on behalf of the Secured Creditors in accordance with the provisions of
Section 11.1 applicable to Collateral generally.
12. TRUST MONEYS AND COLLATERAL ACCOUNTS
12.1 The Collateral Agent shall establish the Collateral Accounts in
The City of New York and shall hold all Trust Moneys and other cash and cash
equivalents relating to the Collateral in its name as Collateral Agent under
this Agreement in such Collateral Accounts, on behalf of the Secured Creditors
for whose benefit such Collateral Accounts are being established, and shall
maintain such Collateral Accounts and, subject to Section 11, administer the
funds in accordance with the specific direction of the Secured Creditors for
whose benefit such Collateral Accounts have been established; provided, however,
that in the event that any such Trust Moneys shall consist of Proceeds, such
Proceeds shall in each instance be (i) segregated from all other Trust Moneys
and (ii) maintained in one or more separate Collateral Accounts by the
Collateral Agent in the jurisdiction in which the Collateral to which such
Proceeds relate is, or was, as the case may be, located if necessary to preserve
the Collateral Agent's perfected security interest in such Proceeds under the
laws of such jurisdiction. The Collateral Agent may require an Opinion of
Counsel for the purpose of making the foregoing determination. In any event,
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subject also to the proviso of the second preceding sentence, the Collateral
Agent shall segregate from all other Trust Moneys and other amounts in separate
Collateral Accounts any Trust Moneys or other amounts required to be segregated
under Section 11 hereof. Whenever cash or cash equivalents are delivered by a
Pledgor or any of its Affiliates to be held by the Collateral Agent, such
Pledgor shall be required to notify the Collateral Agent, in writing, as to
which provisions of any Debt Instrument require the delivery of such cash or
cash equivalents and the specific purpose (if any) for which such cash or cash
equivalents are to be held by the Collateral Agent pursuant to the Debt
Instruments.
13. AGREEMENTS WITH AGENT
13.1 Each of Revolver Agent and Term Agent agrees that,
contemporaneously with the commencement of Enforcement with respect to the
Credit Facility and/or any security instruments relating thereto, it shall
deliver to the Collateral Agent an Enforcement Notice. The Collateral Agent, on
behalf of the Secured Parties, agrees that, contemporaneously with the
commencement of Enforcement with respect to any of the Debt Instruments and/or
any of the Security Documents, it shall deliver to the Revolver Agent and the
Term Agent an Enforcement Notice.
13.2 (a) For up to 210 days following issuance of an Enforcement
Notice, the Collateral Agent, the Term Loan Agent and the Pledgors agree that
the Revolver Agent may, at its option, without charge, at any time (i) enter
upon any or all of any Pledgor's premises, either leased or owned, in order to
inspect, collect, remove, sell or otherwise dispose of the Accounts, Inventory
and any other Excluded 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 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 Accounts,
Inventory and any other Excluded Collateral to which it is entitled; provided,
however, that the Revolver Agent shall compensate the Collateral Agent and the
Term Loan Agent in cash for any damage to the Collat-
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eral used by the Revolver Agent in connection with its entry into and use of the
Collateral as contemplated in this Section 13.2(a) and shall pay the Collateral
Agent and the Term Loan Agent for all their respective documented direct costs
and expenses relating to the provision of the access to the Collateral as
contemplated herein. During such 210-day period, if the Revolver Agent has
entered upon a Pledgor's premises as provided herein, the Collateral Agent and
the Term Loan Agent and their respective designees shall have unrestricted
access to the Collateral for the purpose of evaluating the Collateral and
showing it to potential purchasers; provided, however, that, without creating
any right hereunder in favor of a Pledgor, the access of the Collateral Agent
and the Term Loan Agent, respectively, and their designees shall not
unreasonably and materially interfere with the access of the Revolver Agent and
use of such Pledgor's premises and use of the 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 Inventory, Accounts and any other
Excluded Collateral to which it is entitled.
(b) Following the issuance of an Enforcement Notice, the Revolver
Agent, the Term Loan Agent and the Pledgors agree that the Collateral Agent and
the Pledgors shall have a perpetual license to use the Intellectual Property,
without charge, to the extent necessary or advisable to conduct the Company'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 Pledgor or the Collateral Agent has elected to use the Intellectual
Property, such use by any Pledgor or the Collateral Agent and its designees
shall not unreasonably and materially interfere with the use by the Revolver
Agent or the Term Agent 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 Inventory or the Accounts.
14. [RESERVED]
15. REPRESENTATIONS AND WARRANTIES
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15.1 Each party hereto represents and warrants to each other party
hereto that (i) it has full power and authority to enter into this Agreement and
perform its obligations hereunder, (ii) all action has been taken by it to
authorize its execution, delivery and performance of this Agreement, (iii) its
execution, delivery and performance of this Agreement will not conflict with (a)
any law, decree, statute or regulation applicable to it, or (b) any contract,
commitment, agreement or restriction to which it is a party, or which is binding
upon it, which could restrict its ability to perform its obligations hereunder
in any material respect and (iv) this Agreement constitutes its legal, valid and
binding agreement, enforceable against it in accordance with the terms hereof.
16. AMENDMENTS AND MODIFICATIONS TO CERTAIN DEBT INSTRUMENTS AND
SECURITY DOCUMENTS
16.1 Each Senior Creditor hereby (i) consents to the issuance of the
Senior Secured Notes, the Combination Transactions, the entering into of the
Credit Facility, the transactions contemplated by the Indenture, the Senior
Secured Notes, the Guarantees, the Notes Security Documents, the Credit Facility
and the payment of any fee as described in or otherwise permitted by the
Indenture, (ii) consents to the direct and indirect transfers by BarTech of all
of its right, title and interest in and to any of the Collateral in connection
with the Combination Transactions, (iii) consents to the assumption by the
Company of all of the obligations of BarTech under each respective Debt
Instrument (other than the Senior Secured Notes, the Indenture and the
Guarantees) and (iv) the refinancing and extinguishment of the Replaced Debt
(the transactions described in (i) through (iv) above, collectively, the
"Transactions") and (v) agrees to execute and deliver to the Company any
document, agreement, release, financing statement or other instrument reasonably
necessary to effectuate any of the foregoing. Each Existing Secured Creditor
hereby assigns to the Collateral Agent all of its right, title, and interest in
and to each Security Document to which it is a party subject to the terms and
conditions of this Agreement, and each party hereto hereby undertakes to execute
and deliver to the appropriate party such assignments, documents or instruments
and to take such further actions (including filings and recordings) as the
Collateral
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Agent may deem necessary or appropriate in reliance on an Opinion of Counsel, to
effectuate and perfect such assignments in accordance with applicable law.
16.2 The Pennsylvania Lenders, with respect to the Pennsylvania
Lenders Security Documents and the Pennsylvania Lenders Debt Instruments, hereby
consent to, approve and agree that notwithstanding any provision therein to the
contrary, including, without limitation, any representation or warranty
contained therein or any covenant restricting or affecting the right of the
Company's stockholders to own capital stock of the Company through a holding
company structure or the right of any Pledgor to incur or guarantee debt, to
issue warrants, common stock or other equity, or to grant security interests in,
pledge, encumber or otherwise create or alter the priority of liens on any
assets: (i) the Pennsylvania Lenders Debt Instruments, the Pennsylvania Lenders
Security Documents are hereby amended and restated to the extent of any
inconsistency with any of the provisions, intent or purposes of this Agreement
and to permit the consummation of all of the Transactions; and (ii) each party
hereto hereby undertakes to execute and deliver to each other party hereto such
documents, waivers and instruments and to take such further actions as the
Collateral Agent or any Pledgor may deem reasonably necessary or appropriate to
effectuate the appointment of the Collateral Agent hereunder, and the
priorities, rights and remedies with respect to Collateral set forth herein.
16.3 Upon the execution of this Agreement, each reference in each
Security Document and each Debt Instrument to "this Agreement", "hereunder",
"hereof", "herein" or words of like import, and each reference in any document
related thereto, or executed in connection therewith or herewith, shall mean and
be a reference to the applicable Security Document or Debt Instrument as amended
by this Agreement, and such Security Document or Debt Instrument shall be read
together with this Agreement and construed as one single instrument. Except as
specifically set forth in Section 16.2, the Pennsylvania Lenders Debt
Instruments and the Pennsylvania Lenders Security Documents shall remain in full
force and effect and are hereby ratified and confirmed.
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16.4 Each Existing Secured Creditor hereby agrees to release or
disclaims any and all Security Interests and other Liens of such Secured
Creditor in or to any and all Accounts and Inventory, New Collateral and the
Excluded Collateral of the Pledgors or any other Subsidiary of the Company and
any subsidiary of any thereof and hereby undertakes to execute and deliver to
Agent and/or the Collateral Agent, as applicable, such documents, waivers and
instruments and to take such further action as such Agent and/or the Collateral
Agent, as applicable, may deem reasonably necessary or appropriate to effectuate
such releases.
17. FURTHER ASSURANCES
17.1 Each party hereto covenants to execute and deliver, in each
case at the expense of the Pledgors, such further instruments and to take such
further action as any Secured Creditor may at any time or times reasonably
request in order to carry out the provisions and intent of this Agreement.
18. MISCELLANEOUS
18.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company or another Pledgor:
Republic Technologies International, LLC
[ ]
Attention: President and Chief
Executive Officer
If to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
If to the Johnstown Industrial Development
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Corporation:
c/o Johnstown Area Regional Industries
1ll Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to the Secretary of Commerce as provided below
If to the City of Johnstown, Pennsylvania:
c/o Johnstown Area Regional Industries
1ll Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to the Secretary of Commerce as provided below
If to the County of Cambria:
c/o Johnstown Area Regional Industries
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to the Secretary of Commerce as provided below
If to the Secretary of Commerce:
Secretary of Commerce
Commonwealth of Pennsylvania
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
with a copy to:
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Office of Chief Counsel
Commonwealth of Pennsylvania
Department of Commerce
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Counsel
-and-
Executive Director
Pennsylvania Industrial Development
Authority
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
-and-
Secretary of Community Affairs
Commonwealth of Pennsylvania
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
-and-
Office of Chief Counsel
Commonwealth of Pennsylvania
Department of Community Affairs
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Secretary of Commerce
Commonwealth of Pennsylvania
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
with a copy to:
Office of Chief Counsel
Commonwealth of Pennsylvania
Department of Commerce
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Counsel
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If to the Agent:
[ ]
Attention: Treasurer
If to the Collateral Agent:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Any party hereto may by notice to each other party designate such additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party hereto shall be deemed to have been given or made
as of the date so delivered, if personally delivered; and three calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee). A copy of any notice given under this Agreement to any party
shall also be given to each other party hereto.
18.2 Binding Agreement; Assignment: Obligations Several. This
Agreement shall be binding upon the Pledgors, each of the respective successors
and assigns, and shall be binding upon and inure, together with the rights and
remedies of the Collateral Agent hereunder, to the benefit of the Collateral
Agent, each Secured Creditor and each of the Senior Creditors and each of their
respective successors, transferees and assigns and each Agent; no other persons
(including, without limitation, any other creditor of the Pledgors) shall have
any interest herein or any right or benefit with respect hereto. Without
limiting the generality of the foregoing clause, any Secured Creditor or any
Senior Creditor may assign or otherwise transfer any Indebtedness held by it to
any other person, and such other person shall thereupon become vested with all
the benefits granted, and be subject to all of the terms, hereof. Neither this
Agreement nor any interest herein or in the Collateral, or any part thereof,
except as otherwise permitted herein or in the Debt Instruments, may be assigned
by the
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Pledgors; provided, however, that this Agreement may be assigned by a Pledgor to
any person that shall become an obligor under the Debt Instruments in compliance
therewith if such person executes and delivers an amendment hereto whereby it
expressly assumes all obligations of the applicable Pledgor hereunder as if it
were an original party hereto. This Agreement shall be deemed to be
automatically assigned by the Collateral Agent to any person who succeeds to the
Collateral Agent in accordance with Section 10 hereof, and such assignee shall
have all rights and powers of, and act as, the Collateral Agent hereunder, and
this Agreement shall be deemed to be automatically assigned by any of the
Secured Creditors to those persons who succeed to any of them in accordance with
the provisions of the applicable Debt Instrument. Except as otherwise expressly
provided herein, the obligations of each of the parties under this Agreement are
several and not joint, it being expressly agreed that no Secured Creditors shall
be liable for the failure of any other Secured Creditors to perform its duties
or obligations hereunder. Anything in this Agreement to the contrary
notwithstanding, no holder of any Government Assisted Indebtedness or Notes
Refinancing Indebtedness shall be entitled to any rights or benefits hereunder
unless and until (a) such Government Lender or Notes Refinancing Lender, as the
case may be, shall agree to be bound by all the terms and provisions of this
Agreement pursuant to a written undertaking in the form attached as Exhibit A
hereto and (b) the Company shall give written consent thereto.
18.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER
JURISDICTION MAY BE MANDATORILY APPLICABLE; PROVIDED, HOWEVER, THAT ANY REMEDIES
HEREIN PROVIDED WHICH SHALL BE VALID UNDER THE LAWS OF THE JURISDICTION WHERE
PROCEEDINGS FOR THE ENFORCEMENT HEREOF SHALL BE TAKEN SHALL NOT BE AFFECTED BY
ANY INVALIDITY HEREOF UNDER THE LAWS OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO
ACCEPTS FOR ITSELF AND
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IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS.
18.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT.
18.5 Disclosures; Non-Reliance. Each Existing Secured Creditor has
the means to, and shall in the future remain, fully informed as to the financial
condition and other affairs of the Pledgors and no Secured Creditor or Senior
Creditor shall have any obligation or duty to disclose any such information to
any other Secured Creditor or Senior Creditor. Except as expressly set forth in
this Agreement, the Debt Instruments or the Security Documents, the parties
hereto have not otherwise made to each other nor do they hereby make to each
other any warranties, express or implied, nor do they assume any liability to
each other with respect to: (a) the enforceability, validity, value or
collectability of any of the Secured obligations or Senior Debt or any guarantee
or security which may have been granted to any of them in connection therewith,
or (b) any other matter except as expressly set forth in this Agreement, the
Debt Instruments or the Security Documents.
18.6 Insolvency. This Agreement shall be applicable both before and
after the filing of any petition by or against a Pledgor under any Bankruptcy
Law and all converted or succeeding cases in respect thereof, and all references
herein to a Pledgor shall be deemed to apply to a trustee for such Pledgor and a
Pledgor as a debtor-in-possession. The relative rights of the Secured Creditors
in any Collateral and proceeds of Collateral shall continue after the filing
thereof on the same basis as prior to the date of the petition.
18.7 Effectiveness; Termination. This Agreement shall become
effective on the date on which all of the parties hereto shall have signed a
copy hereof (whether the same or different copies) and shall have delivered the
same to the Collateral Agent. This Agreement shall remain effective until, and
terminate when, all Secured Obligations and Senior Debt are indefeasibly paid in
full in cash in accordance with the terms of the Debt Instruments. Upon
indefeasible payment in full in
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cash of all Secured Obligations in accordance with the terms of the Debt
Instruments, the Collateral Agent shall reassign and redeliver to the applicable
Pledgor its Collateral which has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms hereof or of any Security
Document and shall execute and deliver all documents and instruments reasonably
deemed necessary by each Pledgor to evidence the termination of the Security
Interests created hereunder. Such reassignment and redelivery shall be without
warranty by or recourse to the Collateral Agent, and shall be at the expense of
the Pledgors.
18.8 Amendment, Supplements and Waivers. This Agreement may be
amended, changed, waived, discharged or terminated with the written consent of
each party hereto (who shall only grant such consent in accordance with the
relevant provisions of the appropriate Debt Instrument); provided, however, that
no such consent shall be required of any Secured Party to the extent that all
Secured Obligations of such Secured Party have been irrevocably and indefeasibly
paid in full; provided, further, that no such consent shall be required of any
Secured Creditors to the extent that any such amendment, change, waiver,
discharge or termination would not have an adverse effect on the type, scope or
nature of the Collateral pledged to such Secured Creditors or the priority or
enforceability of the lien on security interest in such Collateral. If in the
opinion of the Collateral Agent any document required to be executed pursuant to
the terms of this Section 18.8 affects any interest or right or duty or immunity
or indemnity in favor of the Collateral Agent under this Agreement or any
Security Document, the Collateral Agent may in its discretion decline to execute
such document. Subject to the immediately preceding sentence, in no event shall
the consent of the Trustee be required to amend this Agreement to reflect the
provision of additional or substituted Collateral as required by terms of the
Indenture. In addition, this Agreement may be amended without the written
consent of the Trustee to (i) permit Government Lenders to be a party hereto and
recognize the Liens of such persons, (ii) permit the substitution or addition of
Collateral in accordance with the Indenture, (iii) permit changes in the
priority of Liens of Secured Parties (other than the Trustee
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and the holders of Senior Secured Notes) with respect to the Collateral;
provided that such changes relate only to Liens junior in priority to the Liens
of the Trustee and the holders of Senior Secured Notes with respect to such
Collateral and such Liens do not extend to or cover the Intellectual Property,
the Acquisition Document Rights, the Other Collateral or the Excluded
Collateral. Any additional Pledgor required to become a party hereto pursuant to
the terms of the Debt Instruments or Security Documents shall execute such
instruments or documents as are reasonably requested by the Collateral Agent to
effectuate its becoming a party hereto.
18.9 Inconsistent Provisions. If any provision of this Agreement
shall be inconsistent with, or contrary to, any provision in any Debt Instrument
or Security Document, such provision of this Agreement shall be controlling, and
shall supersede such inconsistent provision to the extent necessary to give full
effect to all provisions contained in this Agreement.
18.10 Severability. In the event that any provision contained in
this Agreement shall for any reason be held to be illegal or invalid under the
laws of any jurisdiction, such illegality or invalidity shall in no way impair
the effective-ness of any other provision hereof or of such provision under the
laws of any other jurisdiction; provided, however, that in the construction and
enforcement of such provisions under the laws of the jurisdiction in which such
holding of illegality or invalidity exists, and to the extent only of such
illegality or invalidity, this Agreement shall be construed and enforced as
though such illegal or invalid provision had not been contained herein.
18.11 Headings. Section headings used herein and the title of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
18.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
and all of which shall together constitute one and the same instrument.
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18.13 Authority. Each of the parties hereto represents and warrants
to all other parties hereto that (i) the execution, delivery and performance by
or on behalf of such party to this Agreement (a) has been duly authorized by all
necessary action, corporate or otherwise, (b) does not violate any provision of
law or governmental regulation or any agreement or instrument by which such
party is bound and (c) requires no governmental or other consent that has not
been obtained and is not in full force and effect and (ii) this Agreement is a
valid and binding obligation of such parties, enforceable against each such
party in accordance with the terms hereof.
18.14 Execution by Pledgors. By executing this Agreement, the
Pledgors agree to be bound by the provisions hereof as they relate to the
relative rights of the Secured Creditors; provided, however, that, solely as
between each of the Pledgors, on the one hand, and the Secured Creditors, on the
other hand, nothing in this Agreement shall amend, modify, change or supersede
the terms of any Debt Instrument or Security Document, as between each Secured
Creditor and Pledgor signatory thereto, and in the event of any such conflict or
inconsistency between the terms of this Agreement and such Debt Instrument or
Security Document, the terms of such Debt Instrument or Security Document, as
the case may be, shall govern the relationship between such Secured Creditor and
Pledgor. Each Pledgor further agrees that except as expressly provided herein
(i) the terms of this Agreement shall not give such Pledgor any substantive
rights against the Secured Creditors and (ii) if any Secured Creditor shall
enforce its rights or remedies in violation of the terms of this Agreement, such
Pledgor shall neither raise such violation as a defense to the enforcement by
any other Secured Creditor under its respective Debt Instruments and Security
Documents, nor assert such violation as a counterclaim or basis for setoff or
recoupment against any Secured Creditor.
18.15 Agent for Perfection. Each Secured Creditor hereby appoints
each other Secured Creditor as agent for purposes of perfecting their respective
security interests in and Liens on Collateral which is of a type such that
perfection of a security interest therein may be accomplished only by posses-
-69-
sion thereof by the secured party. To the extent that any Secured Creditor
(other than the Collateral Agent) obtains possession of any Collateral, the
Secured Creditor having possession shall notify the Collateral Agent of such
fact and shall deliver such Collateral to the Collateral Agent as soon as
practicable.
18.16 Insurance. Notwithstanding anything to the contrary herein or
in any agreement referred to herein, the Pledgors shall obtain satisfactory
lender's loss payable endorsements or mortgagee endorsements naming the
Collateral Agent as loss payee or mortgagee thereunder with respect to policies
which insure Collateral. The Collateral Agent shall have the sole and exclusive
right to adjust settlement of such insurance policy in the event of any loss to
the Collateral and to exercise the rights provided in any Security Document to
waive or amend insurance requirements or to give consents relating to the
application of any proceeds of insurance, including, without limitation,
consents relating to restoration of Collateral following a casualty, all in
accordance with appropriate instructions received by the Collateral Agent in
writing from the appropriate First Priority Majority Secured Creditors pursuant
to this Agreement. All proceeds of such policy shall be paid to the Collateral
Agent and disbursed in accordance with Section 11.1 of this Agreement. Each
party hereto agrees that the allocation of property or casualty insurance
proceeds payable in respect of loss, damage to or destruction of any Collateral
which affects more than one Category of Collateral shall be as finally
determined by the applicable insurance carrier in its allowance of any filed
proof of loss with respect to such loss, damage or destruction.
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
REPUBLIC TECHNOLOGIES
INTERNATIONAL, LLC (as successor
to Bar Technologies Inc., for-
xxxxx known as BRW Steel Corporation)
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ________, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
______________________), personally known and acknowledged himself/herself to me
(or proved to me on the basis of satisfactory evidence) to be the
____________________ of REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC (as successor
to Bar Technologies Inc., formerly known as BRW Steel Corporation), and that as
such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself/herself in his/her authorized capacity as such
officer as his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
REPUBLIC TECHNOLOGIES
INTERNATIONAL HOLDINGS, LLC
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of REPUBLIC TECHNOLOGIES INTERNATIONAL HOLDINGS, LLC and
that as such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself/herself in his/her authorized capacity as such
officer as his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
RTI CAPITAL CORP.
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of RTI CAPITAL CORP., and that as such officer, being duly
authorized to do so pursuant to its bylaws or a resolution of its board of
directors, executed, subscribed and acknowledged the foregoing instrument for
the purposes therein contained, by signing the name of the corporation by
himself/herself in his/her authorized capacity as such officer as his/her free
and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
BLISS & XXXXXXXX, LLC
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of BLISS & XXXXXXXX, LLC, and that as such officer, being
duly authorized to do so pursuant to its bylaws or a resolution of its board of
directors, executed, subscribed and acknowledged the foregoing instrument for
the purposes therein contained, by signing the name of the corporation by
himself/herself in his/her authorized capacity as such officer as his/her free
and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
CANADIAN DRAWN STEEL COMPANY,INC.
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of CANADIAN DRAWN STEEL COMPANY, INC. and that as such
officer, being duly authorized to do so pursuant to its bylaws or a resolution
of its board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself in his/her authorized capacity as such officer as
his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
NIMISHILLEN & TUSCARAWAS, LLC
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of NIMISHILLEN & TUSCARAWAS, LLC, and that as such officer,
being duly authorized to do so pursuant to its bylaws or a resolution of its
board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself in his/her authorized capacity as such officer as
his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee, and
that as such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself/herself in his/her authorized capacity as such
officer as his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
JOHNSTOWN INDUSTRIAL DEVELOPMENT CORPORATION
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of JOHNSTOWN INDUSTRIAL DEVELOPMENT CORPORATION, and that
as such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself/herself in his/her authorized capacity as such
officer as his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
CITY OF JOHNSTOWN, PENNSYLVANIA
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of CITY OF JOHNSTOWN, PENNSYLVANIA, and that as such
officer, being duly authorized to do so pursuant to its bylaws or a resolution
of its board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself in his/her authorized capacity as such officer as
his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
COUNTY OF CAMBRIA, PENNSYLVANIA
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of COUNTY OF CAMBRIA, PENNSYLVANIA, and that as such
officer, being duly authorized to do so pursuant to its bylaws or a resolution
of its board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself in his/her authorized capacity as such officer as
his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
BANKBOSTON, N.A., as Agent
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of BANKBOSTON, N.A., as Agent, and that as such officer,
being duly authorized to do so pursuant to its bylaws or a resolution of its
board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself in his/her authorized capacity as such officer as
his/her free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
FILING SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative as of the date
first written above.
WITNESSES:
_____________________
[SEAL]
_____________________
Print/Type Name
UNITED STATES TRUST COMPANY OF NEW YORK,
as Collateral Agent
By:__________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this _______ day of ______, 1999 before me, the undersigned
officer, personally appeared ____________________ (residing at
________________________), personally known and acknowledged himself/herself to
me (or proved to me on the basis of satisfactory evidence) to be the
____________________ of UNITED STATES TRUST COMPANY OF NEW YORK, as Collateral
Agent, and that as such officer, being duly authorized to do so pursuant to its
bylaws or a resolution of its board of directors, executed, subscribed and
acknowledged the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself/herself in his/her authorized
capacity as such officer as his/her free and voluntary act and deed of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
[NOTARIAL SEAL] My Commission Expires:
________________________________
Schedule A
Legal Descriptions
FORM OF UNDERTAKING OF
HOLDER OF GOVERNMENT ASSISTED
INDEBTEDNESS/NOTES REFINANCING INDEBTEDNESS/NEW BAR LOANS
The undersigned, being a [Government Lender] [Notes Refinancing
Lender] [New Bar Mill Lender] [describe holders of applicable Government
Assisted Indebtedness/Notes Refinancing Indebtedness/New Bar Loans and
applicable Debt Instrument], hereby undertakes to be bound by all the terms and
provisions of the Amended and Restated Intercreditor and Subordination Agreement
dated as of [ ], 1999 by and among [ ] (the "Intercreditor Agreement").
For purposes of Section 18.1 of the Intercreditor Agreement, any
notice or other communications to the undersigned, as a [Government Lender]
[Notes Refinancing Lender] [New Bar Mill Lender], required or permitted shall be
sent to the following address:
[Insert applicable notice information.]
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Intercreditor Agreement.
Upon execution of this undertaking, the undersigned shall be
entitled to all rights and benefits of a [Government Lender] [Notes Refinancing
Lender] [New Bar Mill Lender] under the Intercreditor Agreement.
By:______________________________
Name:
Title:
Date: _____________________
The undersigned Pledgor[s] hereby acknowledge and consent to the
interest of the [Government Lender] [Notes Refinancing Lender] [New Bar Mill
Lender] identified above under the Intercreditor Agreement.
[ ]
By:______________________________
Name:
Title:
Date: _____________________
