EXHIBIT 10.26.6
EXECUTION COPY
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
This COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (as may be amended from
time to time, this "Agreement") dated as of the 12th day of October, 1999, by
and among: (i) State Street Bank and Trust Company (in its individual capacity
herein referred to as the "Collateral Agent Bank" and in its capacity as
collateral agent herein referred to as the "Collateral Agent"), (ii) Bank of
America, N.A. and the other financial institutions (collectively, together with
their respective successors and assigns, the "Banks") which are parties to the
Credit Agreement (as defined below), (iii) Bank of America, N.A., as agent for
itself and the other Banks (the "Agent Bank"), (iv) each of the holders of Notes
(together with their respective successors and assigns as holders of Notes)
issued pursuant to the Note Purchase Agreements (as defined below) (the "Note
Holders"), (v) Bank of America, N.A. and PNC Bank, National Association, each as
the issuer of IRB Letters of Credit (as defined below) (each, an "LC Issuer"),
(vi) Birmingham Steel Corporation (the "Company"), (vii) Chase Manhattan Trust
Company, National Association, as successor to PNC Bank National Association, as
successor to PNC Bank, Kentucky, Inc., as Owner Trustee (the "Owner Trustee")
under the Equipment Lease Agreement dated as of September 30, 1997 between the
Owner Trustee, as Lessor, and Birmingham Steel Corporation, as Lessee, as
supplemented by Lease Supplement No. 1, dated November 10, 1997, and as further
amended, modified and supplemented from time to time (the "Equipment Lease"),
(viii) First Union National Bank, as Indenture Trustee (the "Indenture Trustee")
under the Trust Indenture and Security Agreement dated as of September 30, 1997,
as supplemented by Trust Indenture Supplement No. 1, dated November 10, 1997,
and as further amended, modified and supplemented from time to time (the
"Indenture") between the Owner Trustee and Indenture Trustee, and (ix) each
Guarantor (as defined below) which executes this Agreement or which from time to
time hereafter executes an instrument accepting and agreeing to the provisions
of this Agreement.
PREAMBLE
WHEREAS, pursuant to a Credit Agreement dated as of March 17, 1997, among
the Company, the Agent Bank, PNC Bank, National Association, and The Bank of
Nova Scotia, as Co-Agents, and the Banks (as amended from time to time, the
"Credit Agreement"), the Banks have, upon the terms and subject to the
conditions contained therein, made and agreed to make loans and otherwise
extended and agreed to extend credit to the Company; and
WHEREAS, the Credit Agreement has been amended by a First Amendment to
Credit Agreement dated as of June 23, 1998; a Second Amendment to Credit
Agreement dated as of September 30, 1998; a Third Amendment to Credit Agreement
dated as of July 27, 1999; and a Fourth Amendment to Credit Agreement dated as
of September 28, 1999; and
WHEREAS, the parties to such Credit Agreement have agreed to further amend
the Credit Agreement pursuant to the Fifth Amendment to Credit Agreement dated
as of the date hereof (the "New Bank Amendment"; references herein to the Credit
Agreement refer to the
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Credit Agreement as amended by the New Bank Amendment, and as may be further
amended from time to time); and
WHEREAS, pursuant to separate Note Purchase Agreements each dated as of
September 1, 1993 (collectively, as amended from time to time, the "1993 Note
Purchase Agreement"), between the Company and each purchaser as party thereto,
the Company issued, and such purchasers purchased, $130,000,000 principal amount
of the Company's 7.28% Senior Notes (the "1993 Notes"); and
WHEREAS, pursuant to separate Note Purchase Agreements, each dated as of
September 15, 1995 (as amended from time to time, the "1995 Note Purchase
Agreement" and, collectively with the 1993 Note Purchase Agreement, the "Note
Purchase Agreements"), between the Company and each purchaser as party thereto,
the Company has issued, and such purchasers purchased, (i) $76,000,000 principal
amount of the Company's 6.96% Series A Senior Notes, (ii) $14,000,000 principal
amount of the Company's 7.07% Series B Senior Notes, and (iii) $60,000,000
principal amount of the Company's 7.17% Series C Senior Notes (the Notes
described in clauses (i), (ii) and (iii), as such Notes may be amended from time
to time being the "1995 Notes" and, collectively with the 1993 Notes, the
"Notes"); and
WHEREAS, the Note Purchase Agreements have been amended by (i) an Amendment
to Note Purchase Agreement with respect to the 1993 Note Purchase Agreement,
dated as of October 18, 1996, and (ii) an Amendment to 1993 Note Purchase
Agreement and an Amendment to 1995 Note Purchase Agreement, each dated as of
December 14, 1998; and
WHEREAS, the Note Holders have agreed to further amend the Note Purchase
Agreements pursuant to the Waiver and Third Amendment to 1993 Note Purchase
Agreement and the Waiver and Second Amendment to 1995 Note Purchase Agreement,
each dated as of the date hereof (collectively, the "New Note Purchase
Amendment"; references herein to the Note Purchase Agreements refer to the Note
Purchase Agreements as amended by the New Note Purchase Amendment and as may be
further amended from time to time); and
WHEREAS, Bank of America, N.A. has issued a letter of credit pursuant to
which up to $15,172,603 may be drawn in connection with certain Industrial
Revenue Bonds issued to provide financing to the Company with respect to the
facility of America Steel and Wire Corporation in Cleveland, Ohio (the "Bank of
America Letter of Credit"); and PNC Bank, National Association, has issued a
letter of credit pursuant to which up to $26,299,179 may be drawn in connection
with certain Industrial Revenue Bonds issued to provide financing to the Company
with respect to the facility of the Company in Memphis, Tennessee (the "PNC
Letter of Credit"; and, collectively with the Bank of America Letter of Credit,
the "IRB Letters of Credit"); and the Company has agreed to reimburse the LC
Issuers for all amounts drawn on the IRB Letters of Credit pursuant to an
Amended and Restated Reimbursement Agreement dated as of the date hereof between
Bank of America, N.A. (as successor to Bank of America Illinois), American Steel
and Wire Corporation, and the Company (the "Bank of America Reimbursement
Agreement"), and a Reimbursement Agreement dated as of October 1, 1996, between
PNC Bank, National Association (as successor to PNC Bank, Kentucky, Inc.), and
the Company (the
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"PNC Reimbursement Agreements" and, collectively with the Bank of America
Reimbursement Agreement, as may be amended from time to time, the "Reimbursement
Agreements"); and
WHEREAS, the Company and the LC Issuers have agreed to amend the
Reimbursement Agreements by amendments dated as of the date hereof (the "LC
Amendments"; references herein to the Reimbursement Agreements refer to the
Reimbursement Agreements as amended by the LC Amendments, and as may be further
amended from time to time); and
WHEREAS, pursuant to the Equipment Lease, the Owner Trustee, as Lessor, has
leased certain melt shop equipment to the Company, as Lessee, and the rights of
the Owner Trustee to payments thereunder have been collaterally assigned to the
Indenture Trustee to secure amounts due with respect to the Equipment Notes
outstanding under (and as defined in) the Indenture (the "Equipment Notes"); and
WHEREAS, it was a condition precedent to (i) the Banks' entering into the
New Bank Amendment, (ii) the Note Holders entering into the New Note Purchase
Amendment, (iii) the LC Issuers entering into the LC Amendments, and (iv) the
Owner Trustee and Indenture Trustee entering into this Agreement that, among
other things, the Company and each of the Guarantors grant a first priority
perfected lien on and security interest in the Collateral (as hereinafter
defined) to the Collateral Agent, for the benefit of (1) the Banks and the Agent
Bank, as security for the Company's obligations to the Banks and the Agent Bank
under the Credit Agreement and the Guarantors' guarantee thereof, (2) the Note
Holders, as security for the Company's obligations under the Note Purchase
Agreements and the Notes and the Guarantors' guarantee thereof, (3) the LC
Issuers, as security for the Company's obligations under the Reimbursement
Agreements and the Guarantors' guarantee thereof, and (4) the Owner Trustee and
the Indenture Trustee, as assignee of the Owner Trustee, as security for the
Lease Claims, as defined herein.
WHEREAS, the Guarantors have executed and delivered guaranties of the
Secured Obligations (as hereinafter defined); and each of the Company and the
Guarantors has entered into certain security agreements and related documents
pursuant to which the Company or such Guarantor (as the case may be) has granted
to the Collateral Agent, for the benefit of the Secured Parties, a security
interest in and lien upon the Collateral, as defined herein.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(S)1. DEFINITIONS.
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(S)1.1. Definitions. The following terms shall have the meanings set
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forth in this (S)1 or elsewhere in the provisions of this Agreement referred to
below:
Action. See (S)2.2(a).
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Actionable Default. Any failure of the Company or any Guarantor to
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pay any of the Secured Obligations as and when due and payable in accordance
with the terms of any Bank
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Credit Document, Note Credit Document, Reimbursement Agreement, Equipment Lease
or Security Document, whether by acceleration (including automatic acceleration
upon the commencement of a bankruptcy case) or otherwise (collectively, a
"Payment Default"), or the commencement of any bankruptcy, insolvency,
reorganization or other similar case or proceeding by or against the Company or
any Guarantor, or the making by the Company or any Guarantor of an assignment
for the benefit of its creditors.
Additional Advance Amount. The principal amount of any additional
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loans made or letters of credit issued under the Credit Agreement such that,
after giving effect to all of such additional loans and letters of credit, the
sum of the Loan and Reimbursement Principal Obligations and Outstanding Bank LC
Exposure at the time of reference thereto do not exceed in the aggregate the
Maximum Bank Commitment.
Affiliate. As to any Person, a Person controlling, controlled by, or
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under common control with such Person.
Agent Bank. As defined in the introductory paragraph hereto and shall
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include any replacement or successor Agent under the Credit Agreement, or any
like agent (or replacement thereof or successor thereto) under any Replacement
Credit Agreement.
Agreement. As defined in the introductory paragraph hereto.
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Applicable Amount. See (S)4.1(d) hereof.
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Applicable Deposit. See (S) 4.1(c) hereof.
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Applicable LC Issuer. See (S) 4.1(d) hereof.
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Avoidance Event. The commencement of bankruptcy or insolvency
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proceedings against the Company within ninety (90) days after the date that the
Lien of the Collateral Agent in the Collateral becomes perfected with respect to
such portion of the Collateral existing on the date hereof as may be perfected
by the filing of UCC-1 financing statements, and the avoidance of such Lien of
the Collateral Agent in any material amount of such Collateral as to which such
Lien that may be perfected by the filing of UCC-1 financing statements.
Bank Credit Documents. The Credit Agreement and the other Bank Loan
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Documents, and any Replacement Credit Agreement, as the same may hereafter be
amended, renewed, extended, restated, supplemented or otherwise modified from
time to time in accordance with the terms of this Agreement.
Bank Debt. The "Obligations" as defined in the Credit Agreement (as
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in effect on the date hereof), or any like term of the same meaning contained in
any Replacement Credit Agreement. Notwithstanding the foregoing, Bank Debt
shall not include Loan and Reimbursement Principal Obligations and Outstanding
Bank LC Exposure to the extent, and only to the extent, that the sum of the Loan
and Reimbursement Principal Obligations and Outstanding Bank LC Exposure exceeds
the Maximum Bank Commitment.
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Bank Loan Documents. The "Loan Documents", as defined in the Credit
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Agreement, or any like term of the same meaning contained in any Replacement
Credit Agreement.
Bank of America Letter of Credit. As defined in the Preamble hereto.
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Bank of America Reimbursement Agreement. As defined in the Preamble
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hereto.
Bank of America Reimbursement Agreement Debt. All indebtedness,
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obligations and liabilities of the Company or American Steel & Wire Corporation
owing to Bank of America, N.A. arising or incurred under the Bank of America
Reimbursement Agreement, whether existing on the date of this Agreement or
arising hereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, arising by contract, operation of law or otherwise.
Notwithstanding the foregoing, Bank of America Reimbursement Agreement Debt
shall not include (a) the principal amount of any reimbursement obligations in
respect of drawings under the Bank of America Letter of Credit in excess of
$15,172,603 in the aggregate, or (b) any Outstanding IRB LC Exposure; provided,
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that (i) drawings of amounts which will be automatically reinstated unless a
notice is timely given by the LC Issuer that such amount will not be reinstated
will not be deemed to be drawings for the purposes of this sentence unless such
notice of non-reinstatement is in fact given, and (ii) drawings to fund any
tender purchase price of the related industrial revenue bonds will not be deemed
to be drawings for the purposes of this sentence so long as the related LC
Issuer has reinstated the amount of such paid drawing,.
Bankruptcy Event. (a) Commencement by the Company or any Guarantor
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(the Company or any such Guarantor, a "Debtor") of a voluntary case in the
United States seeking liquidation, reorganization, or other relief under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, consent to the entry of an order for relief in an involuntary case under
any such law, or consent by the Debtor to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of a Debtor or of any substantial part of its
property, or any general assignment by a Debtor for the benefit of creditors;
(b) a court having jurisdiction in the premises shall enter a decree or order
for relief in respect of a Debtor in an involuntary case in the United States
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of a Debtor or for any
substantial part of its property, or shall order the winding-up or liquidation
of its affairs; or (c) any involuntary bankruptcy petition shall have been filed
against any Debtor seeking a decree or order of relief of the type referred to
in clause (b) above and such petition shall not have been dismissed within a
period of sixty (60) consecutive days.
Banks. As defined in the introductory paragraph hereto, together with
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their respective successors and assigns, and shall include any replacement,
additional or successive lenders under any Replacement Credit Agreement.
Cash Collections Collateral. Collateral consisting of cash amounts
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deposited in local depository bank accounts and lock-box accounts of the Company
or any of the Securing
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Guarantors and cash amounts deposited from such accounts into any like account
or accounts maintained by the Agent Bank or any of the other Banks or the
Collateral Agent.
Casualty Event. See definition of Net Proceeds in this (S) 1.1.
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Collateral. Any of the properties and assets of whatever nature,
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tangible or intangible, now owned or existing or hereafter acquired or arising,
of the Company or any of the Guarantors in which at the time of reference a Lien
has been granted or has purportedly been granted to the Collateral Agent to
secure the Secured Obligations and which has not been released pursuant to the
terms hereof, including, without limitation, all Cash Collections Collateral and
all other cash provided to be the subject of a Lien to secure any of the Secured
Obligations as contemplated by any Security Document, and any property and
assets paid or payable to the Secured Parties or Collateral Agent under any of
the Guaranties or any subordination agreement, but specifically excluding the
Lease Assets.
Collateral Agent. As defined in the introductory paragraph hereto
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unless and until a successor Collateral Agent shall have been appointed pursuant
to (S)5.4 hereof, and thereafter "Collateral Agent" shall mean such successor
Collateral Agent.
Collateral Agent Bank. As defined in the introductory paragraph
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hereto and any bank, in its individual capacity, serving as Collateral Agent.
Company. As defined in the introductory paragraph hereto.
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Credit Agreement. As defined in the Preamble hereto.
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Credit Documents. Collectively, the Bank Credit Documents, the Note
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Credit Documents, the Reimbursement Agreements, the Lease Documents, and the
Security Documents.
Debtor. See definition of Bankruptcy Event in this (S)1.1.
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Default. Any event or condition which, with the giving of notice or
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the lapse of time, or both, would become an Event of Default.
Demand Notice. See (S)4.4(a).
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Disposition. Any sale, exchange, or other disposition of assets,
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except that the following shall not constitute Dispositions hereunder: (a) any
sale of inventory in the ordinary course of business; (b) the Transfer of assets
by the Company to a Guarantor or by a Guarantor to the Company or another
Guarantor, and (c) any sale or other Transfer of assets of Cumberland Recyclers
L.L.C. to Birmingham Southeast, LLC provided that such assets are sold subject
to the continuing Lien of the Collateral Agent.
Distribution Amount. See (S)4.1(c)(i).
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Enforcement Notice. Written notice given by the Requisite Parties or
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Special Requisite Parties, as the case may be, to the Collateral Agent (a)
stating that a Notice of Actionable Default has theretofore been given by such
Requisite Parties or Special Requisite Parties, as the case may be, to the
Collateral Agent and that the Actionable Default specified in such Notice of
Actionable Default continued to exist uncured for the applicable period
described in (S)4.5, and (b) setting forth instructions from such Requisite
Parties or Special Requisite Parties, as the case may be, to the Collateral
Agent to exercise all or any such rights, powers and remedies as are available
under the Security Documents and making such additional statements as may be
called for under (S)4.5.
Equipment Lease. As defined in the Preamble hereto.
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Equipment Notes. As defined in the Preamble hereto.
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Equity Interests. With respect to any Person, shares of capital stock
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of (or other ownership or profit interests in) such Person, warrants, options or
other rights for the purchase or other acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person,
securities convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
Equity Issuance. Any issuance or sale by a Person of any Equity
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Interest in such Person; provided, however, that the term "Equity Issuance" does
not include any issuance or sale by a Person to the extent that such issuance or
sale is made (a) to a current or former director, officer or employee of such
Person pursuant to an "employee benefit plan", as such term is defined in Rule
405 promulgated under the Securities Act of 1933, as amended, or (b) pursuant to
a rights plan existing on the date hereof (or such other rights plan as to which
the issuance of Equity Interests thereunder has been excluded from the
definition of "Equity Interest" herein with the written consent of the Requisite
Parties).
Event of Default. Any "Event of Default" under and as defined in the
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Credit Agreement, any "Event of Default" under and as defined in either of the
Note Purchase Agreements, any Event of Default under either of the Reimbursement
Agreements, any "Lease Event of Default" under or as defined in the Equipment
Lease or any like term of similar meaning contained in any Replacement Credit
Agreement.
Guaranties. See definition of "Guarantors" in this (S)1.1.
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Guarantors. American Steel & Wire Corporation, Birmingham East Coast
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Holdings, LLC, Norfolk Steel Corporation, Port Everglades Steel Corporation,
Birmingham Recycling Investment Company, Midwest Holdings, Inc., and Cumberland
Recyclers, LLC, and any other party that may from time to time hereafter execute
and deliver a guaranty for the
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benefit of any one or more of the Secured Parties guarantying the Secured
Obligations (collectively, the "Guaranties").
Indemnity. See Section 4.1(d) hereof.
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Indenture. As defined in the introductory paragraph hereto.
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Indenture Trustee. As defined in the introductory paragraph hereto.
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IRB Letters of Credit. As defined in the Preamble hereto.
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LC Amendments. As defined in the Preamble hereto.
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LC Issuers. As defined in the introductory paragraph hereto, together
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with their respective successors and assigns (except that references to LC
Issuers in (S) 4.1(d) hereof refer to the LC Issuers without giving effect to
any succession or assignment that is effected or agreed to in connection with or
as a condition of a sale of the assets of SBQ).
Lease Assets. The "Equipment" and the "Indenture Estate", as each
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term is defined in the Equipment Lease (as in effect on the date hereof); and
any other property of the Owner Trustee or the Indenture Trustee.
Lease Claims. All Lease Payment Claims and Lease Expense/Indemnity
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Claims.
Lease Documents. The "Operative Agreements," as defined in the
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Equipment Lease (as in effect on the date hereof).
Lease Expense/Indemnity Claims. All claims of the Owner Trustee, the
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Indenture Trustee, or any of the Owner Participants or the Lenders against the
Company under any of the Lease Documents or under Section 11.11 of this
Agreement (other than the Lease Payment Claims), in each case whether existing
on the date of this Agreement or arising hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, arising by contract,
operation of law or otherwise.
Lease Payment Claims. All claims of the Owner Trustee against the
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Company under the Equipment Lease (as in effect on the date hereof) for payment
of "Basic Rent," "Stipulated Loss Value," "Make-Whole Amount" (as each term is
defined therein), and interest accrued on any of the foregoing, in each case
whether existing on the date of this Agreement or arising hereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
arising by contract, operation of law or otherwise.
Lease Sharing Amount. An amount equal, as of any date, to either (a)
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if the Equipment Lease has been terminated on or prior to such date, the
aggregate unpaid amount of Lease Payment Claims claimed by the Owner Trustee
(and/or the Indenture Trustee, as assignee) under Section 15 of the Equipment
Lease (or, in the event that such claim has been liquidated by adjudication or
settlement, such liquidated amount), or (b) if the Equipment Lease has not been
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terminated on or prior to such date, an amount equal to 33 1/3% of the
Stipulated Loss Value as of such date.
Lease Trigger Event. The occurrence of any of the following: (a) a
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Bankruptcy Event, (b) any of the Secured Obligations (other than the Lease
Claims) shall have been declared by the holder thereof to be due and payable
prior to the scheduled maturity date therefor, (c) any action shall have been
taken to realize on the Collateral at any time while an Actionable Default shall
be continuing, (d) a Lease Event of Default (as defined in the Equipment Lease
as in effect on the date hereof) shall have occurred and be continuing, or (e)
such time as the book value of all assets of the Company and its Subsidiaries
(other than the assets of SBQ) which have been included in Dispositions
subsequent to the date hereof shall be more than $75,000,000.
Lenders. As defined in the Indenture.
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Letter of Credit Collateral Obligations. The obligations of the
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Company under any Bank Credit Document or Reimbursement Agreement (as in effect
on the date hereof) to deposit cash with respect to Outstanding Bank LC Exposure
or Outstanding IRB LC Exposure up to, but not exceeding, one dollar of cash for
each dollar of undrawn face amount of each applicable outstanding letter of
credit.
Lien. Any mortgage, security deed, deed of trust, pledge, lien,
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security interest or other encumbrance, whether now existing or hereafter
created, acquired or arising, and whether voluntary or involuntary, to secure
payment of a debt or performance of an obligation.
Loan and Reimbursement Principal Obligations. At the time of
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reference thereto, Bank Debt consisting of the principal amount of loans
outstanding under the Bank Credit Documents and any unpaid reimbursement
obligations in respect of drawings under letters of credit issued pursuant to
the Bank Credit Documents.
Majority Secured Parties. (i) A group of holders of Secured
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Obligations which includes (a) the holders of at least 51% of the Note Principal
Obligations, (b) the holders of at least 51% of the Reimbursement Agreement
Debt, and (c) the holders of at least 51% of the Loan and Reimbursement
Principal Obligations, or (ii) after the Secured Obligations referred to in
clause (i) above have been paid in full, the Indenture Trustee for so long as
the Lien of the Indenture remains outstanding, and thereafter the Owner Trustee.
Make-Whole Amount. With respect to either of the Note Purchase
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Agreements and the Note Debt owed thereunder, the "Make-Whole Amount" as defined
in such Note Purchase Agreement on the date hereof.
Maximum Bank Commitment. (a) $300,000,000 prior to any mandatory
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reductions of the Commitments, as such term is defined in the Credit Agreement,
pursuant to Section 2.12 of the Credit Agreement; and (b) after any mandatory
reductions of such Commitments pursuant to Section 2.12 of the Credit Agreement,
the result of (i) $300,000,000 minus (ii) the aggregate amount of such mandatory
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reductions.
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Net Lease Sharing Amount. An amount equal, as of any date, to either
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(a) if the Equipment Lease has been terminated on or prior to such date, the
Lease Sharing Amount as of such date, or (b) if the Equipment Lease has not been
terminated on or prior to such date, the result of the Lease Sharing Amount as
of such date minus the sum of all amounts previously deposited in the Section
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4.1(e) Cash Collateral Account.
Net Proceeds. (a) In the case of (x) a Disposition, the aggregate
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amount of all cash received (including without limitation, all cash payments
received by way of deferred payment of principal or interest pursuant to a note
or installment receivable or otherwise, but only as and when received), directly
or indirectly, by the Company or any Guarantor in connection with such
Disposition or (y) in the case of any loss, theft, damage, destruction, or
taking or other eminent domain action (a "Casualty Event"), the aggregate amount
of cash proceeds of insurance, condemnation awards and other compensation
received by the Company or any Guarantor in respect of such Casualty Event, in
each case net of (i) the amount of any reasonable out-of-pocket legal fees,
title and recording tax expenses, commissions and other customary fees and
expenses actually incurred by the Company or any Guarantor in connection with
such Disposition or Casualty Event, (ii) any income taxes reasonably estimated
in good faith by the independent certified public accountant of the Company or
any such Guarantor to be payable in connection with such Disposition or Casualty
Event and other taxes thereon to the extent such other taxes are actually paid
by the Company or any Guarantor, (iii) any repayments by the Company or any
Guarantor of indebtedness (other than indebtedness under any of the Credit
Documents (other than the Lease Documents)) to the extent that such indebtedness
is secured by a Lien on the property that is the subject of such Disposition or
Casualty Event, (iv) in the case of a Casualty Event, the amount of any proceeds
permitted under the Security Documents to be paid to the Company or any
Guarantor for the purpose of replacing, rebuilding or restoring the Collateral
which was affected by the Casualty Event, (v) in the case of a Disposition, the
amount of any proceeds which are not required under the Credit Agreement or the
Note Purchase Agreements to be applied to prepay the Bank Debt or the Note Debt,
and (vi) in the case of a Disposition, any amount of cash reserves reasonably
required to be established to satisfy liabilities relating to the assets sold,
so long as such reserves are paid to and held by the Collateral Agent as
additional Collateral hereunder; and (b) in the case of an Equity Issuance,
sixty percent (60%) of the aggregate amount of all cash received by the Company
or any Guarantor in respect of such Equity Issuance, net of investment banking
fees, legal fees, accountants fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred by the Company in connection
with such Equity Issuance.
New Bank Amendment. As defined in the Preamble hereto.
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New Note Purchase Amendment. As defined in the Preamble hereto.
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1993 Note Purchase Agreement. As defined in the Preamble hereto.
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1995 Note Purchase Agreement. As defined in the Preamble hereto.
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1993 Notes. As defined in the Preamble hereto.
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1995 Notes. As defined in the Preamble hereto.
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Note Credit Documents. The Note Purchase Agreements and the other
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Note Purchase Documents, as the same may hereafter be amended, renewed,
extended, restated, supplemented or otherwise modified from time to time in
accordance with the terms of this Agreement.
Note Debt. All indebtedness, obligations and liabilities of any of
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the Company, the Guarantors and the Subsidiaries to or for the benefit of any
Note Holder arising or incurred under the Note Purchase Agreements (including,
without limitation, Make-Whole Amounts), the Notes or the Guaranties, existing
on the date of this Agreement or arising hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, arising by contract,
operation of law or otherwise. Notwithstanding the foregoing, Note Debt shall
not include Note Principal Obligations to the extent, and only to the extent,
that such Note Principal Obligations at any time exceed $280,000,000.
Note Holders. As defined in the introductory paragraph hereto,
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together with their respective successors and assigns, and shall include any
replacement, additional or successive lender or note purchaser.
Note Principal Obligations. At the time of reference thereto, Note
--------------------------
Debt consisting of the amounts of principal outstanding under the Notes.
Note Purchase Agreements. As defined in the Preamble hereto.
------------------------
Note Purchase Documents. The Notes, the Note Purchase Agreements and
-----------------------
any "notes" and "loan documents", or any like terms of the same meaning, may be
amended, renewed, extended, restated, supplemented or otherwise modified from
time to time in accordance with the terms of this Agreement.
Notes. The Notes, as such term is defined in the Preamble hereto,
-----
together with any promissory notes or other evidences of indebtedness issued in
exchange for, replacement of or substitution for the Notes under the Note
Purchase Agreements.
Notice of Actionable Default. A notice by the Requisite Parties or
----------------------------
the Special Requisite Parties as the case may be, delivered to the Collateral
Agent, stating that an Actionable Default has occurred and is continuing.
Other Banks. See (S)4.1(d) hereof.
-----------
Outstanding Bank LC Exposure. The undrawn face amount of all
----------------------------
outstanding letters of credit issued under the Bank Credit Documents. For the
avoidance of doubt, the undrawn face amount of the Outstanding IRB Letters of
Credit are not included in the Outstanding Bank LC Exposure.
-12-
Outstanding IRB LC Exposure. The aggregate undrawn face amount of the
---------------------------
outstanding IRB Letters of Credit.
Owner Participants. As defined in the Indenture.
------------------
Owner Trustee. As defined in the Preamble hereto.
-------------
Paid Percentage. See (S)4.1(c)(ii).
---------------
Payment Default. See (S)1.1 (in the definition of Actionable
---------------
Default).
Permitted Liens. Liens the existence of which does not breach Section
---------------
8.19(a) of each of the Note Purchase Agreements (as in effect on the date
hereof) and the existence of which does not breach Section 9.2(a) of the Credit
Agreement.
Person. Any individual, corporation, partnership, limited liability
------
company, trust, unincorporated association, business or other legal entity, and
any government or any governmental agency or political subdivision thereof.
PNC Letter of Credit. As defined in the Preamble hereto.
--------------------
PNC Reimbursement Agreement. As defined in the Preamble hereto.
---------------------------
PNC Reimbursement Agreement Debt. The "Company Obligations" as
--------------------------------
defined in the PNC Reimbursement Agreement. Notwithstanding the foregoing, PNC
Reimbursement Agreement Debt shall not include (a) the principal amount of any
reimbursement obligations in respect of drawings under the PNC Letter of Credit
in excess of $26,299,197 in the aggregate, or (b) any Outstanding IRB LC
Exposure; provided, that (i) drawings of amounts which will be automatically
--------
reinstated unless a notice is timely given by the LC Issuer that such amount
will not be reinstated will not be deemed to be drawings for the purposes of
this sentence unless such notice of non-reinstatement is in fact given, and (ii)
drawings to fund any tender purchase price of the related industrial revenue
bonds will not be deemed to be drawings for the purposes of this sentence so
long as the related LC Issuer has reinstated the amount of such paid drawing.
Post-Default Cash Sweep Payment. Any payment to any Bank pursuant to
-------------------------------
the provisions of (S)2.8(b)(iii) of the Credit Agreement (as in effect on the
date hereof) or any similar successor provision which, in any such case, shall
have been made after the Collateral Agent receives notice from any Bank, Note
Holder or LC Issuer of the occurrence of an Event of Default and prior to the
receipt by the Collateral Agent from such Bank, Note Holder or LC Issuer, or
from the Requisite Parties, of notice that payments referred to in this
definition made after such Event of Default shall nevertheless not constitute
Post-Default Cash Sweep Payments (subject to the implementation of the same
provisions after notice to the Collateral Agent of any subsequent Event of
Default).
Pre-Reduction Percentage. See (S)4.1(c)(i).
------------------------
-13-
Principal Obligations. Loan and Reimbursement Principal Obligations,
---------------------
Note Principal Obligations, Bank of America Reimbursement Agreement Debt in an
amount not to exceed $15,172,603, and PNC Reimbursement Agreement Debt in an
amount not to exceed $26,299,197.
Priority Debt. The aggregate amount of Loan and Reimbursement
--------------
Principal Obligations and Outstanding Bank LC Exposure under any Bank Credit
Document at any time in an amount equal to the lesser of (a) the amount thereof
at such time in excess of the Priority Threshold Amount, and (b) $65,000,000.
Priority Threshold Amount. $235,000,000, as reduced from time to time
-------------------------
by the same amount as the "Priority Threshold Amount" (as such term is defined
in the Credit Agreement) is reduced pursuant to (S)2.12(d) thereof as in effect
on the date hereof.
Qualifying Assets. See (S)4.9(b) hereof.
-----------------
Reimbursement Agreements. As defined in the Preamble hereto.
------------------------
Reimbursement Agreement Debt. Collectively, the Bank of America
----------------------------
Reimbursement Agreement Debt and the PNC Reimbursement Agreement Debt.
Replacement Credit Agreement. See (S)4.10(a).
----------------------------
Requisite Parties. As of any date, (i) the holders of at least 66
-----------------
2/3% in aggregate principal amount of the sum of the Reimbursement Agreement
Debt, the Note Debt and the Bank Debt outstanding on such date, or (ii) after
the Secured Obligations referred to in clause (i) above have been paid in full,
the Indenture Trustee so long as the Lien of the Indenture remains outstanding,
and thereafter the Owner Trustee.
Responsible Officer. With respect to the Collateral Agent means an
-------------------
officer in its Corporate Trust Department.
Restricted Subsidiary. As defined in the Credit Agreement.
---------------------
SBQ. The "special bar quality" division of the Company and its
---
Subsidiaries which includes (a) all assets of the Company and its Subsidiaries
located in, or related to its operations in, Memphis, Tennessee; and (b) the
assets of American Steel and Wire Corporation (and the Company's equity
interests in American Steel and Wire Corporation), but specifically excluding
(i) the "missile wire" facility, located in Cleveland, Ohio, (ii) the Company's
equity interest in American Iron Reduction, LLC, and (iii) the interests of the
Owner Trustee and/or the Indenture Trustee in the Lease Assets.
Section 4.1(e) Cash Collateral Account. See (S)4.1(e) hereof.
--------------------------------------
Section 4.1(h) Cash Reserves Account. See (S) 4.1(h) hereof.
------------------------------------
-14-
Section 4.1(e) Distribution Amount. See (S)4.1(e) hereof.
----------------------------------
Secured Obligations. Collectively, (a) the Bank Debt, unless and
-------------------
until the Agent Bank has given notice in writing to the Collateral Agent that
either (i) the Bank Debt has been paid in full and all commitments under the
Bank Credit Documents have terminated, been canceled or permanently reduced to
zero or (ii) the Bank Debt otherwise no longer constitutes Secured Obligations
hereunder, (b) the Note Debt, unless and until all of the Note Holders have
given notice in writing to the Collateral Agent that the Note Debt has been paid
in full or no longer constitutes Secured Obligations hereunder, (c) the Lease
Claims, unless and until the Indenture Trustee and Owner Trustee have given
notice in writing to the Collateral Agent that the Lease Claims have been paid
in full or no longer constitute Secured Obligations hereunder, (d) the Bank of
America Reimbursement Agreement Debt unless and until the holder thereof has
given notice in writing to the Collateral Agent that the Bank of America Letter
of Credit has been terminated and any and all Bank of America Reimbursement
Agreement Debt has been paid in full or no longer constitutes Secured
Obligations hereunder, (e) the PNC Reimbursement Agreement Debt unless and until
the holder thereof has given notice in writing to the Collateral Agent that the
PNC Letter of Credit has been terminated and any and all PNC Reimbursement
Agreement Debt has been paid in full or no longer constitutes Secured
Obligations hereunder, (f) involuntary overdrafts arising in the ordinary course
of banking business of cash management, payroll and similar deposit accounts
maintained by the Company with any of the Banks, which overdrafts exist at the
time that an Event of Default occurs, and (g) all indebtedness, obligations and
liability of the Company or any Guarantor to the Collateral Agent under any
Security Document.
Secured Parties. The Agent Bank, the Banks, the Note Holders, the
---------------
Owner Trustee, the Indenture Trustee, the LC Issuers and the Collateral Agent.
Securing Guarantors. The Guarantors who have granted to the
-------------------
Collateral Agent for the benefit of the Secured Parties a Lien on any of their
properties and assets to secure payment or performance of any of the Secured
Obligations.
Security Documents. Any and all instruments or agreements pursuant to
------------------
which a Lien is created or arises, or a Guaranty is delivered, in favor of the
Collateral Agent or any other Secured Party to secure or guarantee any of the
Secured Obligations (but excluding in any event the Lease Documents).
Special Cash Collateral Account. See (S)4.1(c).
-------------------------------
Special Requisite Parties. As of any date, either (a) the holders of
-------------------------
at least 25% in aggregate principal amount of the Reimbursement Agreement Debt,
the Note Debt, and the Bank Debt outstanding on such date if a Payment Default
shall have occurred and be continuing with respect to such Reimbursement
Agreement Debt, Note Debt or Bank Debt, as the case may be, on such date and at
least thirty (30) days prior to such date the Agent Bank, the LC Issuers, each
of the Note Holders and the Indenture Trustee (or, if the Lien of the Indenture
shall no longer remain outstanding, the Owner Trustee) shall have received
written notice of such Payment Default, or otherwise (b) the Requisite Parties.
-15-
Stipulated Loss Value. As defined in the Equipment Lease (as in
---------------------
effect on the date hereof).
Stock Pledge Agreement. One or more instruments or agreements
----------------------
executed in favor of and delivered to the Collateral Agent in connection with
this Agreement which purports to pledge and grant a security interest to the
Collateral Agent in shares of capital stock or other debt or equity interest of
any Subsidiary or other Person.
Subsidiary. As defined in the Note Purchase Agreements (as in effect
----------
on the date hereof).
Terminated IRB LC. See (S) 4.1(d) hereof.
-----------------
Total Undrawn Letter of Credit Exposure. At the time of reference
---------------------------------------
thereto, the Outstanding Bank LC Exposure at such time and the Outstanding IRB
LC Exposure at such time.
Transfer. Any sale (including any sale and subsequent lease as
--------
lessee), lease as lessor, transfer or other disposition of any asset.
(S)1.2. Terms Generally. The definitions in (S)1.1 shall apply
----- ---------
(except as otherwise specified) equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Sections shall be deemed references to
Sections of this Agreement unless the context shall otherwise require.
(S)2. RECOURSE OF SECURED PARTIES; OTHER COLLATERAL; ACTION BY
-------- -- ------- ------- ----- ---------- ------ --
SECURED PARTIES.
------- -------
(S)2.1. Recourse of Secured Parties; Other Collateral.
-------- -- ------- ------- ----- ----------
(a) Each of the Secured Parties acknowledges and agrees that (i) it
shall only have recourse to the Guaranties and the Collateral through the
Collateral Agent and that it shall have no independent recourse to the
Guaranties or the Collateral and (ii) the Collateral Agent shall have no
obligation to, and shall not (except pursuant to (S)3.2(c) or as otherwise
specifically provided herein), take any action hereunder or under any Security
Document to which it is a party, except upon instructions from the Requisite
Parties in accordance with (S)2.2 hereof.
(b) Nothing contained herein shall restrict (i) the rights of any
Secured Party to pursue remedies, by proceedings in law and equity, to collect
any of the Secured Obligations or to enforce the performance of and provisions
of any of the Secured Obligations, to the extent in either case that such
remedies do not relate to the Collateral or interfere with the Collateral
Agent's ability to take action hereunder or under the Security Documents or (ii)
the rights of any Secured Party to initiate an action or actions in any
bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar proceeding in
-16-
its individual capacity and to appear or be heard on any matter before the
bankruptcy or other applicable court in any such proceeding, including, without
limitation, with respect to any question concerning the post-petition usage of
Collateral and post-petition financing arrangements.
(c) None of the Agent Bank, the Collateral Agent or any other Secured
Party shall contest the validity, perfection, priority or enforceability of or
seek to avoid any Lien securing any Secured Obligation, and each party hereby
agrees to cooperate in the defense of any action contesting the validity,
perfection, priority or enforceability of such Liens. Except as expressly
provided in this Agreement with respect to distributions of Collateral or
proceeds by the Collateral Agent to the Secured Parties, no Secured Party shall
have the right to obtain any of the Collateral for its sole account or the
benefit for its sole account of any Lien securing any of the Secured
Obligations. No Secured Party may seek, and each Secured Party hereby waives,
any right to require any of the Collateral to be partitioned.
(d) Notwithstanding the foregoing, nothing in this Agreement, any
Security Document or any related agreement shall impair or otherwise adversely
affect in any respect any rights or entitlements of the Owner Trustee or the
Indenture Trustee under any of the Lease Documents or, in the event of any
Bankruptcy Event, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code with
respect to any of the Lease Documents.
(S)2.2. Action by Secured Parties.
------ -- ------- -------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action permitted or required by this Agreement to be given or
taken by the Requisite Parties or Special Requisite Parties shall be embodied in
and evidenced by one or more instruments and signed by or on behalf of such
Requisite Parties or Special Requisite Parties, as applicable, and, except as
otherwise expressly provided in any such instrument to be effective at a later
date, any such action shall become effective when such instrument or instruments
shall have been received by the Collateral Agent. The instrument or instruments
evidencing any action (and the action embodied therein and evidenced thereby)
are sometimes referred to herein as an "Action" of the Persons signing such
instrument or instruments.
(b) The Collateral Agent shall be entitled to rely absolutely upon an
Action of the Requisite Parties or Special Requisite Parties if such Action
purports to be taken by or on behalf of such Requisite Parties or Special
Requisite Parties, and nothing in this (S)2.2 or elsewhere in this Agreement
shall be construed to require the Collateral Agent to demonstrate that such
Requisite Parties or Special Requisite Parties have been authorized by the
Banks, Note Holders, LC Issuers, the Indenture Trustee and/or the Owner Trustee,
as applicable, to take any action which they purport to be taking, the
Collateral Agent being entitled to rely conclusively, and being fully protected
in so relying, on any Action of any Banks, any Note Holders, LC Issuers, the
Indenture Trustee and/or the Owner Trustee, as the case may be.
(S)3. DUTIES OF COLLATERAL AGENT.
------ -- ---------- -----
-17-
(S)3.1. Notices to the Secured Parties. The Collateral Agent shall,
------- -- --- ------- -------
as soon as practicable but in any event, if applicable, within five (5) business
days following receipt thereof, furnish to each of the Agent Bank, each of the
Note Holders, each of the LC Issuers, and the Owner Trustee and the Indenture
Trustee:
(a) a copy of each Notice of Actionable Default, Demand Notice or
Enforcement Notice received by the Collateral Agent;
(b) a copy of each certificate received by the Collateral Agent
rescinding or withdrawing a Notice of Actionable Default, Demand Notice or
Enforcement Notice;
(c) written notice of any release or subordination by the
Collateral Agent of any Collateral;
(d) a copy of any notice or other communication given or received
by the Collateral Agent under any Security Document; and
(e) such other notices required by the terms of this Agreement to
be furnished by or to the Collateral Agent.
Any Notice of Actionable Default, Demand Notice or Enforcement Notice shall
be deemed to have been given when actually received by a Responsible Officer of
the Collateral Agent and, subject to (S)4.5(c), to have been rescinded or
withdrawn when a Responsible Officer of the Collateral Agent has actually
received from the notifying party a notice rescinding or withdrawing such Notice
of Actionable Default, Demand Notice or Enforcement Notice. Any Notice of
Actionable Default, Demand Notice or Enforcement Notice shall be deemed to be
outstanding at all times after such notice has been given until such time, if
any, as such notice has been rescinded or withdrawn.
(S)3.2. Actions Under Security Documents.
------- ----- -------- ---------
(a) The Collateral Agent shall not be obligated to take any action
under this Agreement or any of the Security Documents except for the performance
of such duties as are specifically set forth herein or therein. The Collateral
Agent shall take any action under or with respect to the Security Documents or
the Collateral which is requested by the Requisite Parties or Special Requisite
Parties pursuant to (S)4.5; provided that the Collateral Agent shall not amend
--------
or waive any provision of the Security Documents except in accordance with (S)7.
(b) The Collateral Agent shall exercise or refrain from exercising all
such rights, powers and remedies as shall be available to it under the Security
Documents to which it is a party or any of them or with respect to the
Collateral solely in accordance with an Enforcement Notice received from the
Requisite Parties or Special Requisite Parties in accordance with (S)4.5. The
Collateral Agent shall have the right to decline to follow any such direction if
(i) the Collateral Agent, being advised by counsel and acting in good faith,
determines that the directed action is not permitted by the terms of this
Agreement or the
-18-
Security Documents or is unlawful or (ii) the Collateral Agent, being advised by
counsel and acting in good faith, is in reasonable doubt as to whether such
directed action is permitted by this Agreement or the Security Documents or
would involve it in personal liability and, in the case of this clause (ii), is
not provided, upon its request therefor, written confirmation from the Requisite
Parties or the Special Requisite Parties, as the case may be, providing the
Enforcement Notice that the Collateral Agent's indemnity by the other Secured
Parties contained in this Agreement would apply without exception for such
directed action. All directions from the Requisite Parties and Special Requisite
Parties shall be as contemplated and permitted by this Agreement and the
applicable Security Document and will not be illegal. The Collateral Agent may
rely on any such direction given to it by the Requisite Parties and Special
Requisite Parties and shall be fully protected, and shall under no circumstances
(absent the gross negligence and willful misconduct of the Collateral Agent) be
liable to the Company, any Guarantor, any holder of any Secured Obligations, or
any other Person for taking or refraining from taking action in accordance with
such direction and the otherwise applicable terms of this Agreement.
(c) In the absence of an Enforcement Notice (which may relate to the
exercise of specific remedies or to the exercise of remedies in general) from
the Requisite Parties or Special Requisite Parties, the Collateral Agent shall
not, without the written consent or direction of the Requisite Parties or
Special Requisite Parties, exercise remedies available to it under any Security
Documents or with respect to the Collateral or any part thereof.
(S)3.3. Status of Moneys Received.
------ -- ------ --------
All moneys received by the Collateral Agent pursuant to this Agreement
shall be held in trust for the purposes for which they were paid, and shall be
segregated from any other moneys held by the Collateral Agent, and may be
deposited by the Collateral Agent under such general conditions as may be
prescribed by law in the general banking department of the Collateral Agent, and
the Collateral Agent shall not be liable for any interest thereon except for
interest and other income obtained in accordance with this paragraph. The
Collateral Agent shall invest any funds held by it pursuant to this Agreement as
directed in writing by the Requisite Parties in any of the following: (i)
obligations issued or guaranteed by The United States of America or any agency
or instrumentality thereof; (ii) certificates of deposit of or interest bearing
accounts with national banks or corporations endowed with trust powers having
capital and surplus in excess of $100,000,000; (iii) commercial paper that at
the time of investment is rated A-1 by Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc., or Prime-1 by Moody's Investor's Service, Inc.;
(iv) repurchase agreements with any bank or corporation described in clause (ii)
fully secured by obligations described in clause (i); and (v) shares of a money
market fund investing only in short term U.S. Treasury obligations or
obligations backed by short-term U.S. Treasury obligations. The Collateral
Agent shall add any interest or other income from such investments to the
amounts to be distributed in accordance with (S)4.1(b) hereof.
All interest earned on such investments shall be considered the currently
reportable income of the Company for federal income tax purposes. The
Collateral Agent annually shall file information returns with the United States
Internal Revenue Service and payee statements with the Company, documenting such
interest payments. The Company shall provide the
-19-
Collateral Agent all forms and information necessary to complete such
information returns and payee statements.
Should the Collateral Agent become liable for the payment of taxes
including withholding taxes, relating to income derived from any funds held by
its pursuant to this Agreement or any payment made hereunder, the Collateral
Agent may pay such taxes from such funds.
(S)4. CERTAIN INTERCREDITOR ARRANGEMENTS.
------- ------------- ------------
(S)4.1. General Rule: Pari Passu Rights Against Collateral.
------- ---- ---- ----- ------ ------- ----------
(a) General Rule. All amounts owing with respect to the Secured
------- ----
Obligations shall be secured by the Guaranties and the Collateral, without
distinction as to whether some Secured Obligations are then due and payable and
other Secured Obligations are not then due and payable, all in accordance with
the priorities established in this (S)4.
(b) Application of Collateral Proceeds Generally. If (i) the
----------- -- ---------- -------- ---------
Collateral Agent receives any cash amounts as payments under any Security
Documents or as proceeds of or otherwise constituting the Collateral (which
amounts, under the terms of any of the Security Documents, are to be applied to
any of the Secured Obligations), including (but subject to (S) 4.1(d) below) any
amounts received pursuant to (S)4.6 and (S)4.7, any proceeds received by the
Collateral Agent in connection with any Disposition of the assets of SBQ or any
of the other Collateral and, if applicable, any sum received by the Collateral
Agent pursuant to (S)507(b) of the Bankruptcy Code in any bankruptcy case in
which the Company or a Guarantor is a debtor, or (ii) the Company or any
Guarantor receives any Net Proceeds from a Disposition or Casualty Event with
respect to the Collateral or from an Equity Issuance, all such cash amounts
shall be applied (subject to (S)4.2 hereof):
(i) first, to the payment of any unpaid fees or other amounts
-----
owing to the Collateral Agent pursuant to (S)5.5, (S)5.6 or (S)5.7;
(ii) second, equally and ratably to reimburse the Secured
------
Parties for any amounts paid by the Secured Parties pursuant to (S)5.6;
(iii) third, equally and ratably to all outstanding accrued and
-----
unpaid interest on and principal of Priority Debt, provided that, except as
--------
provided in (S)4.1(g) hereof, none of the proceeds from any sale of the
assets of SBQ or any Equity Issuance shall be applied pursuant to this
clause (iii);
(iv) fourth, equally and ratably to all outstanding accrued and
------
unpaid interest and Make-Whole Amounts and outstanding Loan and
Reimbursement Principal Obligations, Reimbursement Agreement Debt,
Outstanding Bank LC Exposure, Outstanding IRB LC Exposure, and Note
Principal Obligations, constituting Bank Debt, Note Debt, or Reimbursement
Agreement Debt, and the Lease Payment Claims,
-20-
according to the aggregate amounts thereof (other than the Lease Payment
Claims) on the date of such distribution and, in the case of Lease Payment
Claims, the Net Lease Sharing Amount as of the date of such distribution;
provided, however, that no such cash amounts arising from a Disposition
--------
of the assets of SBQ, or from or in connection with a release of Collateral
which is approved by the Requisite Parties (whether or not arising from a
Disposition thereof), shall be applied to the Lease Payment Claims pursuant
to this clause (iv) (or any other clause of this (S)4.1(b)) unless a Lease
Trigger Event has occurred and is continuing,
(v) fifth, equally and ratably, to all other Secured Obligations
-----
not covered by clauses (i) through (iv) of this (S) 4.1(b); and
(vi) sixth, after payment of all Secured Obligations, to the
-----
Company or to whomever else the Collateral Agent may be required to pay by
applicable law.
(c) Special Letter of Credit Provision. Except to the extent provided
-----------------------------------
otherwise in (S)4.1(d) hereof, any payment pursuant to clause (iv) of (S)4.1(b)
with respect to Outstanding Bank LC Exposure or Outstanding IRB LC Exposure (an
"Applicable Deposit") shall be paid to (or retained by) the Collateral Agent for
deposit in an account (the "Special Cash Collateral Account") to be held as
Collateral for the Secured Obligations and to be applied as provided in this
(S)4.1(c).
(i) Distributions of Cash Collateral. On each date after the
--------------------------------
creation of the Special Cash Collateral Account on which a reduction in
Total Undrawn Letter of Credit Exposure occurs by reason of either a
drawing under any letter of credit (including any IRB Letter of Credit) or
any other reduction, expiration or cancellation of any such letter of
credit, the Collateral Agent shall distribute from the Special Cash
Collateral Account an amount (a "Distribution Amount") equal to the product
of (1) the Paid Percentage immediately prior to such reduction in Total
Undrawn Letter of Credit Exposure (the "Pre-Reduction Percentage") and (2)
the amount of such reduction, provided, that any reduction of Outstanding
--------
IRB LC Exposure which will be automatically reinstated unless a notice is
timely given by the applicable LC Issuer that such reduction will not be
reinstated, shall not be deemed to be a reduction of Total Undrawn Letter
of Credit Exposure unless such notice of non-reinstatement is in fact
given. The Distribution Amount shall be distributed as follows: (A)
first, to pay any outstanding principal amount of whichever of the Loan and
Reimbursement Principal Obligations, Bank of America Reimbursement
Agreement Debt, and PNC Reimbursement Agreement Debt, if any, shall have
been increased by such reduction pro rata in proportion to the respective
--- ----
amounts thereof owed to each Bank and LC Issuer, to the extent, if any,
necessary so that the Paid Percentage of each of the Loan and Reimbursement
Principal Obligations, Bank of America Reimbursement Agreement Debt and PNC
Reimbursement Agreement Debt (not including Outstanding IRB LC Exposure)
immediately after giving effect both to any increase in the amount thereof
which may have occurred as a result of such reduction in the Total Undrawn
Letter of Credit Exposure and to such payment being made from the Special
Cash Collateral Account
-21-
under this clause (A), is equal to the Pre-Reduction Percentage; and (B)
next, to the extent of any balance of the Distribution Amount, as provided
in clauses (iii), (iv), (v) and (vi) of (S)4.1(b). Subject to the
provisions of (S)4.1(d) hereof, at such times as the Outstanding Bank LC
Exposure and Outstanding IRB LC Exposure are reduced to zero, any amount
remaining in the Special Cash Collateral Account, after the payment of all
prior Distribution Amounts, shall be distributed as provided in clauses
(iii), (iv), (v) and (vi) of (S)4.1(b).
(ii) Definition of Paid Percentage. The "Paid Percentage" means,
-----------------------------
at the relevant time of reference thereto with respect to any Distribution
Amount, the fraction (expressed as a percentage) the numerator of which is
(x) the sum of all payments with respect to Principal Obligations made
pursuant to (S)4.1 prior to or at such time and the denominator of which is
(y) the aggregate amount of Principal Obligations outstanding, immediately
before the Applicable Deposit from which such Distribution Amount was
funded. In the event that, at the relevant time of reference thereto, no
payments with respect to Principal Obligations shall have been made
pursuant to (S)4.1, the Paid Percentage shall be zero.
(d) Special Provisions Regarding Proceeds from Sale of SBQ.
------------------------------------------------------
Notwithstanding the provisions of (S)4.1(b), under the circumstances set forth
in this (S)4.1(d), the distribution to the Note Holders, the Banks, and the LC
Issuers of the proceeds from any sale of the assets of SBQ shall be made in
accordance with the provisions of this (S)4.1(d), it being understood that
nothing in this (S)4.1(d) shall alter the amount of such proceeds otherwise
required to be distributed under (S)4.1(b) in respect of the Lease Payment
Claims in the event that a Lease Trigger Event has occurred and is continuing.
If (i) there is a sale of all or a substantial portion of the assets of SBQ, and
(ii) prior to, contemporaneous with, or as a condition of such sale, the IRB
Letters of Credit (or either of them) expire undrawn, are terminated, are
cancelled (any of the foregoing being a "Terminated IRB LC"), or the LC Issuers
receive any letter of credit, indemnity or other comfort (collectively
"Indemnity") that the IRB Letters of Credit (or any portion of them or either of
them) will not be drawn or that, if drawn, the LC Issuers will be reimbursed or
indemnified for all or a portion of the amount drawn by a Person or Persons
other than the Company and the Guarantors (or from assets other than those of
the Company and the Guarantors), regardless of whether such Indemnity is
absolute or is contingent or conditional (the issuer of a Terminated IRB LC or
recipient of an Indemnity being an "Applicable LC Issuer"), then
(w) for purposes of determining the amount payable to the Note
Holders, the net proceeds from any sale of the assets of SBQ
shall be deemed to have been greater than the actual net proceeds
from any sale of the assets of SBQ by an amount equal to the sum,
if any, of (A) with respect to Terminated IRB LCs, the aggregate
undrawn face amount of the IRB Letters of Credit immediately
prior to the expiration, termination or cancellation thereof, and
(B) with respect to IRB Letters of Credit as to which Indemnity
was obtained, the amount of such Indemnity (collectively, the sum
of (A) and (B) being the "Applicable Amount"),
-22-
(x) the Note Holders will receive the same amount from the net
proceeds from the sale of the assets of SBQ as the Note Holders
would have received pursuant to (S)4.1(b) had such net proceeds
been increased by such Applicable Amount,
(y) after the Note Holders have received the amount payable to them
pursuant to (S)4.1(b) (after giving effect to this (S)4.1(d)),
the amounts payable pursuant to (S)4.1(b) to the Banks that are
not (and whose direct and indirect assignors were not) the
Applicable LC Issuers (the "Other Banks") shall be the amount
that the Other Banks would have received if the net proceeds from
the sale of the assets of SBQ had been increased by the
Applicable Amount, and
(z) after the Note Holders and the Other Banks have received the
amounts payable to them pursuant to (S)4.1(b) (after giving
effect to this (S)4.1(d)), the Banks that are (or whose direct or
indirect assignors were) the Applicable LC Issuers shall receive
on account of the Bank Debt the remaining net proceeds, if any,
allocable to the Banks that are the LC Issuers from the sale of
the assets of SBQ, provided that,
--------
(1) if the net proceeds from the sale of the assets of SBQ are not
sufficient for the Note Holders to receive the amount that they are entitled to
receive pursuant to (S)4.1(b) (after giving effect to this (S)4.1(d), then (A)
the Note Holders shall receive all of the proceeds from the sale of the assets
of SBQ covered by this (S)4.1(d), (B) the Applicable LC Issuers shall make such
arrangements with the Banks that are not the Applicable LC Issuers (which
arrangements shall be without cost to or effect on the Secured Parties other
than the Banks and the Applicable LC Issuers) so as to cause the Banks that are
not the Applicable LC Issuers to have received (at or about the same time that
the Note Holders are paid pursuant to clause (A) of this paragraph) the same
percentage of the amount that would have been payable to the Banks that are not
the Applicable LC Issuers pursuant to clause (y) (if there had been sufficient
proceeds to pay such amounts), as the percentage that the amount that the Note
Holders receive pursuant to clause (A) of this paragraph constitutes with
respect to the amount that the Note Holders would have received pursuant to
clause (x) had there been sufficient proceeds to pay such amounts, and (C) all
amounts that thereafter become payable pursuant to (S)4.1(b) with respect to the
Bank Debt to the Banks that are (or whose direct or indirect assignors were) the
Applicable LC Issuers shall be paid instead equally and ratably to the Note
Holders and the Banks that are not the Applicable LC Issuers (and allocated
among each of them equally and ratably) until the Note Holders and Banks that
are not Applicable LC Issuers have received, in addition to all other amounts
payable to them hereunder, the amounts that would have been paid to them
pursuant to this (S)4.1(d) but for the Net Proceeds from the sale of the assets
of SBQ being insufficient to pay such amounts to them, provided that,
--------
notwithstanding the foregoing, the provisions of this (S) 4.1(d) shall not be
applied to pay to the Note Holders or Banks that are not Applicable LC Issuers
amounts that are payable to the Applicable LC Issuers pursuant to clause (iii)
of (S) 4.1(b) after the following events have occurred: (1) the holders of 51%
of the Bank Debt give notice to the Collateral Agent that an Actionable Default
has occurred, and (2) the Banks declare all of the Bank Debt to be due and
payable on account of such Actionable Default.
-23-
(e) Special Equipment Lease Provisions. Any payment pursuant to
----------------------------------
clause (iv) of (S)4.1(b) which is to be applied to Lease Payment Claims prior to
the termination of the Equipment Lease shall be paid to (or retained by) the
Collateral Agent for deposit in an account (the "Section 4.1(e) Cash Collateral
Account") to be held as Collateral for the sole and exclusive benefit of the
Lease Payment Claims (subject to and to the extent set forth in this (S)4.1(e))
and to be applied as provided in this (S)4.1(e). Any payment pursuant to clause
(iv) of (S)4.1(b) which is to be applied to Lease Payment Claims on or after
termination of the Equipment Lease shall be paid by the Collateral Agent to the
Indenture Trustee (for distribution by the Indenture Trustee in the order of
priority set forth in Section 3.03(a) of the Indenture for so long as the Lien
of the Indenture remains outstanding, and thereafter to the Owner Trustee).
(i) Distribution of Section 4.1(e) Cash Collateral After
----------------------------------------------------
Termination of Equipment Lease. If, on any date on or after creation of the
------------------------------
Section 4.1(e) Cash Collateral Account, the Equipment Lease is terminated, the
Collateral Agent shall distribute to the Indenture Trustee (for distribution by
the Indenture Trustee in the order of priority set forth in Section 3.03(a) of
the Indenture, for so long as the Lien of the Indenture remains outstanding, and
thereafter to the Owner Trustee), from the Section 4.1(e) Cash Collateral
Account an amount (a "Section 4.1(e) Distribution Amount") equal to the lesser
of (x) the Lease Sharing Amount as of such date, and (y) the amount in the
Section 4.1(e) Cash Collateral Account. Any amount remaining in the Section
4.1(e) Cash Collateral Account after such distribution to the Indenture Trustee
or the Owner Trustee, as the case may be, shall be applied in accordance with
(S)4.1(b) hereof.
(ii) Other Distributions of Section 4.1(e) Cash Collateral.
-----------------------------------------------------
If the Equipment Lease expires at the end of its term (and is not terminated
prior to such expiration) and all Lease Payment Claims have been paid in full,
then the amount in the Section 4.1(e) Cash Collateral Account shall be applied
in accordance with (S)4.1(b) hereof.
(f) Reallocation of Subsequent Distributions. Notwithstanding the
-----------------------------------------
foregoing, if (i) any deposit(s) shall be made into the Section 4.1(e) Cash
Collateral Account on any date(s) in respect of the Lease Payment Claims
pursuant to this (S)4.1 and (ii) the Equipment Lease shall be terminated on a
subsequent date and the Net Lease Sharing Amount thereupon shall become an
amount smaller or larger than 33 1/3% of the Stipulated Loss Value as of such
earlier date(s), a "true-up" shall be effected with respect to the next
distribution(s) of Collateral proceeds and other amounts pursuant to (S) 4.1
hereof so that the Lease Payment Claims shall receive pursuant to this (S) 4.1 a
cumulative amount of Collateral proceeds and other amounts pursuant to (S) 4.1
hereof equal to what the Indenture Trustee or Owner Trustee, as the case may be,
would have received pursuant to this (S) 4.1 had the revised Net Lease Sharing
Amount been in effect on and after the first occurrence of a Lease Trigger
Event.
(g) Special Provision Regarding Allocation of SBQ and Equity Issuance
-----------------------------------------------------------------
Proceeds After the Occurrence of an Event of Default. If the holders of 51% of
----------------------------------------------------
the Bank Debt give notice to the Collateral Agent before a distribution by the
Collateral Agent pursuant to (S)4.1(b)(iii) hereof that an Event of Default has
occurred under the Credit Agreement, and if such notice certifies that there is
at the time of such distribution any outstanding accrued and unpaid interest on
or principal of Priority Debt, and if such distribution includes proceeds from
the sale
-24-
of the assets of SBQ or any Equity Issuance (the "SBQ or Equity Issuance
Proceeds"), then the amount of such distribution that is allocable to the SBQ or
Equity Issuance Proceeds shall be paid to (or retained by) the Collateral Agent
to the extent of the amount of such outstanding accrued and unpaid interest on
or principal of Priority Debt, for deposit in an account to be held as
Collateral for the Secured Obligations (the "Section 4.1(g) Account"), and to be
applied as provided in this (S)4.1(g).
(i) Distributions on Account of Priority Debt. If the Banks
-----------------------------------------
declare all of the Bank Debt to be due and payable on account of such
Event of Default within thirty (30) days after the date that such
notice is given to the Collateral Agent pursuant to this (S)4.1(g)
that an Event of Default has occurred, and if during such thirty (30)
day period after such notice is given such declaration is not
rescinded or waived and no loans are made and no credit is extended by
the Banks to the Company or the Guarantors, then the distribution that
is to be made by the Collateral Agent on account of the SBQ or Equity
Issuance Proceeds shall be applied to the Priority Debt, to the extent
of the amount thereof, before being applied pursuant to (S)4.1(b)(iv).
(ii) Distributions on Account of Other Secured Obligations.
-----------------------------------------------------
Any amounts in the Section 4.1(g) Account that are not distributable
to the Banks on account of Priority Debt pursuant to clause (i) of
this (S)4.1(g) shall be applied by the Collateral Agent in accordance
with clauses (iv), (v) and (vi) of (S)4.1(b) hereof.
(h) Special Provision Regarding Cash Reserves Relating for Sold
-----------------------------------------------------------
Assets. Any amount of cash reserves referred to in clause (vi) of the
definition of Net Proceeds shall be deposited by the Collateral Agent in an
account (the "Section 4.1(h) Cash Reserves Account") to be held as Collateral
for the Secured Obligations and to be applied as provided in this (S)4.1(h).
(i) If, prior to the Collateral Agent receiving notice from
any Bank, Note Xxxxxx, XX Issuer or the Requisite Parties that an
Actionable Default has occurred, the Company certifies to the
Collateral Agent in writing that an amount specified in such
certification is payable to the buyer of assets (the sale of which
gave rise to the requirement that cash reserves be maintained) to
satisfy liabilities owed to such buyer under the purchase agreement
relating to such assets, then the Collateral Agent shall pay to the
Company the amount specified in such certification (but not more than
the amount maintained in the Section 4.1(h) Cash Reserves Account on
account of the applicable sale).
(ii) If the Collateral Agent receives notice from any Bank,
Note Xxxxxx, XX Issuer or the Requisite Parties that an Actionable
Default has occurred, then the Collateral Agent shall not pay or
distribute any funds from the Section 4.1(h) Cash Reserves Account
except in accordance with the written instructions of the Requisite
Parties, provided that such instructions may only instruct the
--------
Collateral Agent to pay the funds (or a portion thereof) in the
Section 4.1(h) Cash Reserves Account to the Company (or the applicable
seller) or to the Secured Parties in accordance with this (S) 4.1.
-25-
(i) On each occasion that the Collateral Agent makes any payment or
distribution to a Secured Party pursuant to this (S) 4.1, the Collateral Agent
shall give notice to the Company setting forth the amount paid or distributed to
each Secured Party.
(S)4.2. Non-Cash Distributions or Proceeds. If the Collateral Agent
-------- ------------- -- --------
receives any non-cash distributions or proceeds in respect of the Guaranties or
the Collateral, then, unless the Requisite Parties instruct the Collateral Agent
to the contrary, the Collateral Agent shall hold such non-cash distributions and
proceeds as Collateral upon the terms of this Agreement and the Security
Documents until converted to cash and thereupon applied or disbursed in
accordance with this (S)4; provided, however, that, if any non-cash distribution
-------- -------
is received by the Collateral Agent and is to be applied in satisfaction of any
Secured Obligation by operation of a plan of reorganization under Chapter 11 of
the United States Bankruptcy Code or otherwise as required by applicable law,
the Requisite Parties may, instead of awaiting the conversion of such non-cash
distribution to cash, direct the Collateral Agent to distribute such non-cash
distribution as provided in (S)4.1(b), except in respect of a distribution under
(S)4.1(b)(i).
(S)4.3. Additional Collateral. If any of the Banks, the Agent Bank,
---------- ----------
the LC Issuers or the Note Holders receives any mortgage, pledge, security
interest in or other lien or encumbrance on any assets of the Company, any
Guarantor or any other of the Company's Subsidiaries, then any such mortgage,
pledge, security interest or other lien or encumbrance shall secure the Secured
Obligations, and be assigned to the Collateral Agent for the benefit of the
Secured Parties.
(S)4.4. Notice of Demand; Acceleration.
------ -- ------ ------------
(a) Each of the Banks, the Agent Bank, the LC Issuers, the Note
Holders, the Owner Trustee and the Indenture Trustee hereby agrees to give
written notice to the Collateral Agent of any demand for payment in full of the
Secured Obligations owing to the demanding party, whether by acceleration of
such obligations or otherwise (a "Demand Notice").
(b) Neither the Agent Bank, any Bank, any LC Issuer, any Note Holder,
the Owner Trustee nor the Indenture Trustee shall incur liability of any kind
should it, upon the occurrence of any Actionable Default, refrain from
accelerating the maturity or otherwise demanding payment in full of any Secured
Obligations owing to it, or should it refrain from exercising any of its rights
and remedies against the Company, any Guarantor or any other obligor in respect
of the Secured Obligations.
(S)4.5. Enforcement.
-----------
(a) The Collateral Agent shall (subject to the provisions of (S)3.2
and (S)5) take any such actions in the exercise of rights and remedies under the
Security Documents as are directed in an Enforcement Notice given by the
Requisite Parties or Special Requisite Parties, as the case may be, at any time
more than three (3) business days after a Notice of Actionable Default has been
given to a Responsible Officer of the Collateral Agent with respect to the Event
of Default that is the basis (or one of the bases) of the Enforcement Notice.
The Requisite
-26-
Parties or Special Requisite Parties, as the case may be, giving a Notice of
Actionable Default or Enforcement Notice to the Collateral Agent shall
contemporaneously give a copy thereof to the other Secured Parties.
(b) Each of the Agent Bank, each Bank, each LC Issuer, each Note
Holder, the Indenture Trustee and the Owner Trustee agrees that it will
promptly, and in any event within five (5) business days after the request by
one of the others (which request may be made telephonically), advise the
requesting party (telephonically, confirmed in writing) as to the outstanding
principal amount of the Loan and Reimbursement Principal Obligations,
Outstanding Bank LC Exposure, Outstanding IRB LC Exposure, Letter of Credit
Collateral Obligations, Reimbursement Agreement Debt, or Note Principal
Obligations owed to it (or, in the case of the Agent Bank, owed to the Banks) or
(in the case of the Owner Trustee or Indenture Trustee) as to the Lease Sharing
Amount. Any party may rely on such information (or other means available to it)
to determine whether the Requisite Parties have acted with respect to any action
or proposed action.
(c) No Enforcement Notice, when issued, may be rescinded or withdrawn
without the written consent of the Requisite Parties or Special Requisite
Parties, whichever shall have given such Enforcement Notice.
(S)4.6. Turnover of Collateral and Post-Default Cash Sweep. If any
-------- -- --------------------------------------
Secured Party (other than the Owner Trustee or Indenture Trustee) acquires
custody, control or possession of any payment or assets constituting a Post-
Default Cash Sweep Payment or any Collateral (including proceeds therefrom),
other than pursuant to the terms of (S)4.1 or (S)4.2 hereof, such Secured Party
shall, promptly with respect to Collateral (including proceeds thereof), and
within fifteen (15) days after their receipt thereof with respect to Post-
Default Cash Sweep Payments, cause such payment or assets to be delivered to or
put in the custody, possession or control of the Collateral Agent or, if the
Collateral Agent shall so designate, an agent of the Collateral Agent (which
agent may be a branch or affiliate of the Collateral Agent) in the same form of
payment received, with appropriate endorsements, for distribution in accordance
with the provisions of (S)4.1 or (S)4.2, as applicable. The Collateral Agent
shall notify each of the Secured Parties within two (2) business days after the
Collateral Agent receives any notice (a) from any Bank, Note Holder or LC Issuer
of the occurrence of an Event of Default, or (b) from the Requisite Parties that
payments referred to in the definition of Post-Default Cash Sweep Payments will
not constitute Post-Default Cash Sweep payments on account of such Event of
Default. If any cash is received by any of the Banks with respect to Letter of
Credit Collateral Obligations other than pursuant to (S)4.1 hereof, and such
cash has not been applied to reduce Loan and Reimbursement Principal Obligations
resulting from a drawing upon a letter of credit relating to such Letter of
Credit Collateral Obligations prior to the time that an Enforcement Notice is
given, such cash shall, at the time that such Enforcement Notice is given, be
delivered to the Collateral Agent and applied as provided in (S)4.1. Until such
time as the provisions of the immediately preceding sentences have been complied
with, such Secured Party shall be deemed to hold such Collateral in trust for
the Collateral Agent. Notwithstanding the foregoing, neither the Agent Bank,
the Banks, the LC Issuers nor the Note Holders shall be required to deliver to
the Collateral Agent or such agent of the Collateral Agent, any amounts received
by the Agent Bank, the Banks, the LC Issuers, or the Note Holders prior to
receipt by
-27-
such Secured Party of a Notice of Actionable Default to the extent that such
amounts constitute (a) payments of principal (other than Post-Default Cash Sweep
Payments) on the Bank Debt, the Reimbursement Agreement Debt or the Notes
required to be made pursuant to the Credit Documents and due and paid prior to
such date, or (b) regular payments of interest, fees and other charges on or in
respect of the Bank Debt, the Reimbursement Agreement Debt or the Notes due and
paid prior to such date.
(S)4.7. Setoffs. Each of the Secured Parties agrees with each other
-------
Secured Party that (a) if any Secured Party (other than the Owner Trustee or
Indenture Trustee) exercises any right of setoff, banker's lien or similar right
with respect to any Collateral or any assets of the Company or any Guarantor
(other than a setoff by a Bank prior to any Notice of Actionable Default (x) to
repay an involuntary overdraft arising in the ordinary cause of banking business
of cash management, payroll and similar deposit accounts maintained by the
Company or any Guarantor with any of the Banks, or (y) to pay regular account
maintenance fees), the amount set off shall be applied ratably to the Secured
Obligations in accordance with (S)4.1 or (S)4.2, as the case may be, (b) if such
Secured Party (other than the Owner Trustee or Indenture Trustee) shall receive
from the Company or any Guarantor, (i) whether by voluntary payment, exercise of
the right of setoff, counterclaim, cross-action, enforcement of the claim in
respect of the Secured Obligations owing to such Secured Party by proceedings
against the Company at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
for application to the payment of the Secured Obligations owing to such Secured
Party any amount in excess of its ratable portion of the payments received by
the other Secured Parties as contemplated by (S)4.1 or (S)4.2, as the case may
be, or (ii) any of the Banks shall receive any Post-Default Cash Sweep Payment,
such Bank or other Secured Party will make such disposition and arrangements
with the other Secured Parties with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
--- -----
result in each Secured Party receiving in respect of the Secured Obligations
owing to it its proportionate payment as contemplated by (S)4.1 or (S)4.2, as
the case may be; provided that if all or any part of such excess payment is
--------
thereafter recovered from such Secured Party, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such recovery, but
without interest.
(S)4.8. Waivers and Amendments of Credit Documents.
------- --- ---------- -- ------ ---------
(a) Without the prior written consent of the Agent Bank, the holders
of 51% of the Note Debt, the holders of 51% of the PNC Reimbursement Agreement
Debt, and the holders of 51% of the Bank of America Reimbursement Agreement
Debt, the parties hereto (other than the Owner Trustee and the Indenture
Trustee) shall not modify or amend any provisions of or give any waiver with
respect to the Credit Documents to which such party hereto is a signatory, if
the effect of such modification or amendment or waiver is (i) to cause the
maximum principal amount or maximum commitment of or in respect of the Bank Debt
to exceed the Maximum Bank Commitment, or (ii) to increase the principal amount
of the Note Debt or Reimbursement Agreement Debt then outstanding, or (iii) to
increase the stated rate of interest or any fees or other amounts due under any
of the Credit Documents to which such party hereto is a signatory as outstanding
on the date hereof, or (iv) to amend or modify any term defined therein which is
incorporated by reference into this Agreement, or is specifically referred to in
this Agreement in
-28-
such a way as to alter its meaning in this Agreement. Without the prior written
consent of the Requisite Parties, the parties hereto (other than the Owner
Trustee and the Indenture Trustee) shall not modify or amend any provisions of
or give any waiver with respect to the Credit Documents to which such party is a
signatory, if the effect of such modification or amendment or waiver is to
provide for loans to be made or letters of credit to be issued (other than by
extension or renewal) after the issuance of an Enforcement Notice. Except as
otherwise specified in the two preceding sentences, the Agent Bank and the
Banks, the Note Holders and the LC Issuers, without the consent of the other
parties, shall be free to deal with the Company and the Guarantors in their
respective sole discretion under and in respect of the provisions of the Credit
Documents to which they are party, with the right and power without limitation
to modify, amend or waive any terms or provisions of such Credit Documents, to
grant extensions of the time of payment or performance, and to make compromises
and settlements with the Company or any Guarantor.
(b) The Agent Bank and the Banks agree that they will not modify or
amend any covenants, defaults or payment provisions which are based on the
financial condition or results of operations of the Company and/or its
Subsidiaries contained in the Bank Credit Documents without giving at least five
(5) business days' prior written notice thereof to the Note Holders, and the LC
Issuers; the Note Holders agree that they will not modify or amend any
covenants, defaults or payment provisions which are based on the financial
condition or results of operations of the Company and/or its Subsidiaries in the
Note Credit Documents without giving at least five (5) business days' prior
written notice thereof to the Agent Bank, and the LC Issuers; the Owner Trustee
and the Indenture Trustee agree that they will not modify or amend any
covenants, defaults or payment provisions which are based on the financial
condition or results of operations of the Company and/or its Subsidiaries in the
Equipment Lease without giving at least five (5) business days' prior written
notice thereof to the Agent Bank, the Note Holders and the LC Issuers; and each
LC Issuer agrees that it will not modify or amend any covenants, defaults or
payment provisions which are based on the financial condition or results of
operations of the Company and/or its Subsidiaries contained in the Reimbursement
Agreement to which it is a party without giving at least five (5) business days'
prior written notice thereof to the Agent Bank and the Note Holders.
-29-
(S)4.9. Release or Subordination of Collateral.
------- -- ------------- -- ----------
(a) Collateral consisting of (i) Net Proceeds of any Disposition
which, together with the aggregate Net Proceeds of all other Dispositions of
Collateral within the preceding twelve (12) months, do not exceed $1,000,000,
and the proceeds of any other Disposition with the consent of the Requisite
Parties, and (ii) the Net Proceeds of any Casualty Event which, taken together
with the aggregate Net Proceeds of all other Casualty Events with respect to
Collateral within the preceding twelve (12) months, do not exceed $5,000,000,
shall, unless, in either case, a party hereto has notified the Collateral Agent
that a Default or an Event of Default has occurred and is continuing or would
occur after giving effect thereto, be released to the Company or Guarantor that
owned the Collateral, as the case may be, subject to the provisions of the next
sentence. The Collateral Agent is hereby authorized to release such Collateral
and to provide such discharge, release and termination statements with respect
to such Released Collateral upon receipt of a certificate of the chief financial
officer or any vice president of the Company to the effect that no Default or
Event of Default exists or would result therefrom and that such release is
permitted under this (S)4.9(a), and that, with respect to Net Proceeds of
Casualty Events, the Company intends to use such Net Proceeds to repair or
replace the Collateral that was the subject of the Casualty Event.
(b) The Collateral Agent shall, if requested by the Company or any
Guarantor, release any Collateral that is the subject of a Disposition but which
is not released pursuant to (S)4.9(a), and provide such releases and termination
statements as may be reasonably requested by the Company or any such Guarantor
with respect thereto in connection with any Disposition thereof, so long as (i)
the Requisite Parties have consented to such request, (ii) the Collateral Agent
receives a certificate of the chief financial officer or any vice president of
the Company to the effect that (A) no Default or Event of Default exists or
would result from the honoring of such request, (B) the transferee of the
Collateral is not an Affiliate of the Company, and (C) the proceeds of such
Disposition equal or exceed the fair market value of the Collateral subject to
such Disposition, (iii) the Collateral Agent obtains a perfected security
interest in any non-cash proceeds of such Disposition, (iv) except as otherwise
provided herein, the Net Proceeds of such Disposition are delivered to the
Collateral Agent, and (v) any cash portion of the Net Proceeds of such
Disposition are applied or paid in accordance with this Agreement; provided,
--------
that, with respect to a Disposition of the assets of SBQ, no consent of the
Requisite Parties shall be required under clause (i) of this paragraph and the
provisions of clause (ii)(C) of this paragraph shall not be applicable if: (1)
an executive officer of the Company certifies that the Company has consulted
with and received advice from Credit Suisse First Boston in connection with such
Disposition and has received a letter from Credit Suisse First Boston stating
that in its view the consideration to be received by the Company in connection
with such Disposition is fair from a financial point of view under the
circumstances; (2) the cash portion of the sales price is not less than 75% of
the total sales price; and (3) the cash portion of the Net Proceeds of such sale
are applied to the Secured Obligations in accordance with the terms of this
Agreement, and further provided that (x) if the certificate provided pursuant to
----------------
clause (ii) of this paragraph (b) further certifies that the Company intends to
purchase, within thirty (30) days after the date of such certificate, assets of
the same type of assets that were the subject of the Disposition (e.g. the
purchase of equipment after the sale of equipment) which are usable in the
ordinary course of the Company's business ("Qualifying Assets"), (y) subject to
the provisions of clause (z) below, the
-30-
Collateral Agent shall retain, rather than distributing, the proceeds from such
Disposition (except that this clause (y) and clause (z) below in this paragraph
(b) shall not apply to any Disposition of SBQ or any Disposition that would
cause the proceeds received by the Collateral Agent from Dispositions during any
consecutive twelve (12) month period to exceed $10,000,000), and (z) if the
Collateral Agent receives a certificate of the chief financial officer or any
vice president of the Company on or within thirty (30) days after the date of
such disposition, to the effect that (1) the Company has purchased Qualifying
Assets on or within thirty (30) days after the date of the applicable
Disposition, (2) the cash portion of the purchase price of such Qualifying
Assets was as set forth in such certificate, (3) such Qualifying Assets were
purchased from a Person that is not an Affiliate of the Company, (4) the
purchase price for such Qualifying Assets did not exceed their fair market
value, and (5) no Default or Event of Default exists or would result from the
purchase of the Qualifying Assets, the Collateral Agent shall pay to the Company
the lesser of the purchase price for the Qualifying Assets and the amount
received by the Collateral Agent from the applicable Disposition. Any amounts
not paid to the Company pursuant to the preceding sentence shall be distributed
in accordance with (S) 4.1 hereof.
(c) The Net Proceeds from any Casualty Event with respect to
Collateral shall (i) be paid to (or retained by) the Collateral Agent for
distribution in accordance with (S)4.1 hereof, if such Net Proceeds from any
such Casualty Event equal or exceed $25,000,000, and (ii) except as provided in
(S)4.9(a) and except as set forth below in this paragraph (c), be paid to (or
retained by) the Collateral Agent for distribution in accordance with (S)4.1
hereof, if such Net Proceeds from any such Casualty Event are less than
$25,000,000. The Company may utilize the Net Proceeds from a Casualty Event
with respect to Collateral if such Net Proceeds are less than $25,000,000 (1)
with the written consent of the Requisite Parties, on such terms and conditions
as may be established by the Requisite Parties with respect thereto, or (2)
without such written consent of the Requisite Parties, on the following
conditions and in the following manner: (A) the Company shall provide to the
Collateral Agent, within thirty (30) days after the date that the amount of the
Net Proceeds is determined, a certificate of the chief financial officer or any
vice president of the Company to the effect that (x) no Default or Event of
Default exists (or would exist if the Net Proceeds from Casualty Event were used
to repair or replace the Collateral that was the subject of the Casualty Event),
(y) the Company intends to repair or replace the Collateral that was the subject
of the Casualty Event, and (z) the Company has sufficient cash on hand or
available in order to fund such repair or replacement, if such Net Proceeds are
made available to the Company, (B) to the extent that the Company desires
funding or reimbursement therefor from the Net Proceeds applicable thereto, the
Company shall submit to the Collateral Agent (or to such agent as may be
retained by the Collateral Agent to carry out the responsibilities of the
Collateral Agent pursuant to this sentence) such invoices as the Company
receives from time to time for goods or services purchased or obtained in
connection with such repair or replacement, together with a written request that
such invoice be paid from such applicable Net Proceeds (or that the Company be
reimbursed from such applicable Net Proceeds for its payment of such invoice),
(C) no Event of Default shall have occurred prior to the requested payment from
time to time of an invoice pursuant to this paragraph (c), and (D) the Company
shall provide such evidence as the Requisite Parties or any agent retained by
the Collateral Agent in accordance with clause (B) above may require in order to
evidence that the remaining Net Proceeds are sufficient to fund the balance of
cost of the repair or replacement of the Collateral that was the subject of the
Casualty Event. The Company shall pay to the
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Collateral Agent, as and when billed therefor, all fees and reasonable expenses
incurred by the Collateral Agent or any such agent in connection with the
matters set forth in this paragraph.
(d) To the extent that the Credit Documents (other than the Lease
Documents) of any party explicitly permit any Disposition without consent under
such Credit Document but in respect to which such party's consent is required
pursuant to this (S)4.9, such party agrees to provide that consent. But nothing
in this (S)4.9 shall (i) be deemed to imply any waiver of any restriction on
Dispositions under the Credit Agreement, either of the Note Purchase Agreements
or any other Credit Document, or (ii) without the prior written consent of the
Requisite Parties, authorize the Collateral Agent in any bankruptcy case to
enter into any agreement for, or give any authorization or consent with respect
to, the post-petition usage of Collateral.
(e) In the event all of the security interests created by the Security
Documents in favor of the Secured Parties other than the Owner Trustee and
Indenture Trustee are terminated pursuant to Section 11.5(a)(i), (ii) and (iii)
hereof, the security interest created by the Security Documents in favor of the
Owner Trustee and Indenture Trustee shall also be released and thereupon the
Lease Claims shall no longer constitute Secured Obligations hereunder; provided
--------
that concurrently with such release, the Company shall secure the Lease Claims
with a perfected first priority security interest in separate collateral in
amount and in form reasonably satisfactory to the Indenture Trustee and the
Owner Trustee.
(f) Whether or not so instructed by the Requisite Parties, the
Collateral Agent may release any Collateral and may provide any release,
termination statement or instrument of subordination required by order of a
court of competent jurisdiction or otherwise required by applicable law.
(S)4.10. Replacement Credit Facilities.
-----------------------------
(a) The Company shall be free, without the consent of the Note
Holders, the LC Issuers, the Owner Trustee or the Indenture Trustee, to enter
into a Replacement Credit Agreement (as defined below) provided that (i) upon
--------
giving effect to such Replacement Credit Agreement all outstanding Secured
Obligations owed to the Banks shall have been discharged and the Credit
Agreement shall have been terminated, (ii) each lender under such Replacement
Credit Agreement shall assume in writing all obligations of the Banks hereunder
accruing on or after the date such lenders become parties hereto, as amended as
provided in clause (iv) hereof, (iii) after giving effect to such Replacement
Credit Agreement, no Default or Event of Default shall then be in existence, and
(iv) such technical amendments to the Note Credit Documents, the Lease Documents
and this Agreement, reasonably requested by the Note Holders, the LC Issuers,
the Owner Trustee or the Indenture Trustee, as the case may be, as necessary for
any terms in the Note Credit Documents, the Lease Documents or this Agreement
cross referencing the Credit Agreement to cross reference instead such
Replacement Credit Agreement, shall have been made. A "Replacement Credit
Agreement" shall mean a credit facility from one or more commercial banks or
other financial institutions providing the Company with loans, letters of
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credit or other advances or extensions of credit (A) without any lien or other
priority over the other Secured Obligations, (B) not in excess of the
Commitments (as defined in the Credit Agreement) under the Credit Agreement
immediately prior to such refinancing and pursuant to which the loan
availability and loan commitments to the Company from such refinancing shall not
be less than that available and in effect immediately prior to such refinancing,
(C) for a committed term of at least 36 months, (D) the financial covenants of
such refinancing or extension shall not be more stringent than the financial
covenants contained in the amended Note Purchase Agreements as reasonably
determined by the holders of 51% of the Note Debt; and (E) such refinancing
would be permitted under the then applicable debt incurrence tests of the Note
Purchase Agreements.
(b) The term of the existing Credit Agreement may be extended (i)
without the consent of the Note Holders if such extension provides for no
Priority Debt, or (ii) in all other cases with, but only with, the consent of
the holders of 66 2/3% of the Note Debt. To the extent that the term of the
Credit Agreement is extended with such consent, or any other provisions thereof
are amended or modified by the parties thereto, the Credit Agreement shall not
be considered a Replacement Credit Agreement for purposes of (S)4.10(a).
(S)4.11. Independent Investigation; Sharing of Financial Information.
----------- ------------- ------- -- --------- -----------
Each of the Banks, the Agent Bank, the LC Issuers, and the Note Holders
acknowledges and agrees that it has entered into the Credit Documents to which
it is party and (as applicable) extended funds and/or credit or provided
services to the Company on the basis of its own independent investigation of the
Company, its Subsidiaries and affiliated companies, and their business,
operations and financial condition, that it shall continue to make such
investigations in connection with the credit and/or loans extended to the
Company as it deems appropriate and that it has not conducted any such
investigations in reliance upon information, analysis and recommendations which
it may have obtained from any other Secured Party. Without derogation in any
way of the preceding sentence, the Company acknowledges and consents to any
exchange of information by and among the Banks, the Agent Bank, the LC Issuers,
the Note Holders, the Owner Trustee and the Indenture Trustee, without regard to
whether the impact of any such exchange is favorable or unfavorable to the
Company and without regard to the accuracy or completeness of any information so
exchanged.
(S)4.12. Agents. Except as specifically provided in this Agreement,
------
and except for the role of the Collateral Agent as specified in this Agreement,
neither the Agent Bank nor any of the Banks is acting as agent for any Note
Xxxxxx, XX Issuer or the Owner Trustee or Indenture Trustee; no Note Holder is
acting as agent for the Agent Bank or any Bank or LC Issuer or the Owner Trustee
or Indenture Trustee; no LC Issuer is acting as agent for the Agent Bank, the
Banks, any Note Holder, or the Owner Trustee or Indenture Trustee; neither the
Owner Trustee nor the Indenture Trustee is acting as agent for the Agent Bank,
the Banks, the Note Holders or the LC Issuers; and nothing stated or implied in
this Agreement shall be deemed to create such an agency, or other fiduciary
relationship.
(S)4.13. Effect of Avoidance. If an Avoidance Event occurs, (a) the
-------------------
provisions of (S)2 hereof and this (S)4 with respect to the Collateral and
distribution of the proceeds thereof shall cease to be effective with respect to
the Collateral as to which the Lien of the Collateral Agent is
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avoided and the proceeds thereof, (b) (S)4.1(d) shall cease to be effective, and
(c) this Agreement shall not thereafter restrict any party's right to amend and
administer its Credit Documents in such party's discretion. For the avoidance of
doubt, nothing in this paragraph is intended to affect any of the provisions
herein regarding the Guaranties.
(S)5. CONCERNING THE COLLATERAL AGENT.
---------- --- ---------- -----
(S)5.1. Appointment of Collateral Agent. The Agent Bank, acting on
----------- -- ---------- -----
instructions from the Banks, the Note Holders, the Owner Trustee, Indenture
Trustee, and the LC Issuers hereby appoint the Collateral Agent Bank to act as
collateral agent pursuant to the terms of this Agreement and the Security
Documents, and the Collateral Agent Bank hereby accepts such appointment. The
relationship between the Collateral Agent and the holders of the Secured
Obligations is and shall be that of agent and principal only, and nothing
contained in this Agreement or any of the Credit Documents shall be construed to
appoint the Collateral Agent as a trustee for any such holder.
(S)5.2. Limitations on Responsibility of Collateral Agent.
----------- -- -------------- -- ---------- -----
(a) The Collateral Agent shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations or
warranties contained herein or in any Security Document, except for those made
by it herein. The Collateral Agent makes no representation as to the value or
condition of the Collateral or any part thereof, as to the title of the Company
or any Guarantor to the Collateral, as to the security afforded by this
Agreement or any Security Document or, except as set forth in (S)6, as to the
validity, execution, enforceability, legality or sufficiency of this Agreement
or any Security Document, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent shall not
be responsible for insuring the Collateral, for the payment of taxes, charges,
assessments or liens upon the Collateral or otherwise as to the maintenance of
the Collateral, except as provided in the immediately following sentence when
the Collateral Agent has possession of the Collateral. The Collateral Agent
shall have no duty to the Company or any Guarantor or to the holders of any of
the Secured Obligations as to the care of any Collateral in its possession or
control or in the possession or control of any agent or nominee of the
Collateral Agent or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto, except the duty to
accord such of the Collateral as may be in its possession substantially the same
care as it accords its own assets and the duty to account for monies received by
it. The Collateral Agent's duties and responsibilities shall be determined
solely by the provisions of this Agreement and the Security Documents to which
it is a party, and the Collateral Agent shall not be liable or responsible for
any duties or obligations set forth in any other document to which it is not a
party.
(b) The Collateral Agent shall not be responsible for any loss
suffered with respect to any investment permitted to be made under this
Agreement and shall not be responsible for the consequences of any oversight or
error of judgment whatsoever, except that the Collateral Agent may be liable for
losses due to its willful misconduct, or negligence. The Collateral Agent shall
not be required to ascertain or inquire as to the performance by the Company of
any of the covenants or agreements contained herein or in any of the Credit
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Documents. Neither the Collateral Agent nor any officer, agent or
representative thereof shall be personally liable for any action taken or
omitted to be taken by any such Person in connection with this Agreement or any
Security Document except for such Person's own gross negligence or willful
misconduct. Neither the Collateral Agent nor any officer shall be personally
liable for any action taken by any such Person in accordance with any notice
given by the Requisite Parties in accordance with and pursuant to the terms of
this Agreement even if, at the time such action is taken by any such Person, the
Requisite Parties or Persons purporting to be the Requisite Parties are not so
authorized by the Requisite Parties to give such notice, except where a
Responsible Officer of the Collateral Agent has actual knowledge that such
Requisite Parties or Persons purporting to be the Requisite Parties are not so
authorized by the Requisite Parties to give such notice. The Collateral Agent
may execute any of the powers granted under this Agreement or any of the
Security Documents and perform any duty hereunder or thereunder either directly
or by or through agents or attorneys-in-fact and shall not be responsible for
anything done by such agents or attorneys-in-fact selected by it with due care.
(c) Whenever pursuant to the provisions hereof or of any Security
Document it is required that any party hereto obtain the consent or approval of
the Collateral Agent, or that any matter prove satisfactory to the Collateral
Agent, or that any action be taken at the request, discretion, option or
determination of the Collateral Agent, the Collateral Agent, prior to giving any
such consent or approval or request, or exercising any such option, discretion
or determination, or indicating its satisfaction with any such matter, shall
(except where the failure to do so, in its good faith judgment, could imperil
the Collateral or the Liens thereon) be required to consult with the Secured
Parties in a manner deemed reasonable by the Collateral Agent, and the
Collateral Agent shall be protected in following any direction of the Requisite
Parties or Special Requisite Parties, as the case may be.
(d) The foregoing provisions of this (S)5.2 shall not relieve the
Collateral Agent of any liability for any failure to perform any contractual
duty expressly undertaken by it to be performed under this Agreement if such
liability is caused by the negligence or willful misconduct of the Collateral
Agent.
(S)5.3. Reliance by Collateral Agent; Etc.
-------- -- ---------- ----- ---
(a) Whenever in the performance of its duties under this Agreement the
Collateral Agent shall deem it necessary or desirable that a matter be proved or
established with respect to any Person in connection with the taking, suffering
or omitting of any action hereunder by the Collateral Agent, such matter may be
conclusively deemed to be proved or established by a certificate executed by an
officer of such Person, and the Collateral Agent shall have no liability with
respect to any action taken, suffered or omitted in reliance in good faith
thereon.
(b) The Collateral Agent may consult with counsel and shall be fully
protected in taking any action hereunder in good faith in accordance with any
advice of such counsel. The Collateral Agent shall have the right but not the
obligation at any time to seek instructions concerning the administration of
this Agreement, the duties created hereunder, or any of the Collateral from any
court of competent jurisdiction.
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(c) The Collateral Agent shall be fully protected in relying in
good faith upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order or other paper or document which it
believes to be genuine and to have been signed or presented by the proper party
or parties. In the absence of its gross negligence or willful misconduct, the
Collateral Agent may conclusively rely in good faith, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificate or opinions furnished to the Collateral Agent in connection with
this Agreement.
(d) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence of any
Event of Default or Actionable Default unless and until a Responsible Officer of
the Collateral Agent shall have received a Notice of Actionable Default or
notice of such Event of Default. The Collateral Agent shall have no obligation
whatsoever either prior to or after receiving such a Notice of Actionable
Default to inquire whether an Actionable Default has, in fact, occurred and
shall be entitled to rely in good faith conclusively, and shall be fully
protected in so relying, on any certificate so furnished to it and shall have no
obligation, absent written instructions from the Requisite Parties, to take or
omit to take any action with respect to such Notice of Actionable Default.
(e) To the extent the Collateral Agent is required (pursuant to
(S)4 or otherwise) to determine any amount of, or take any action to distribute
any amount in respect of, any Secured Obligation hereunder, it shall have no
obligation to do so unless such amount shall have been certified in writing by
the holder of such Secured Obligations as being the amount in question. Each of
the other parties hereto agrees to certify such amounts upon request of the
Collateral Agent. If any dispute or disagreement shall arise as to the
allocation of any sum of money received by the Collateral Agent hereunder or
under any Security Document, the Collateral Agent shall have the right to
deliver such sum to a court of competent jurisdiction and therein commence an
action for interpleader.
(f) The Collateral Agent shall assume for all purposes hereunder
that the Lien of the Indenture remains outstanding unless and until the
Collateral Agent receives notice from the Indenture Trustee that the Lien of the
Indenture is no longer outstanding.
(S)5.4. Resignation or Removal of the Collateral Agent. The
----------- ------------- --- ---------- -----
Collateral Agent may at any time resign by giving at least sixty (60) days prior
written notice thereof to each Secured Party and the Company, and the Collateral
Agent may at any time be removed for cause (consisting of fraud, gross
misconduct, willful or reckless breach of this Agreement or other just cause, as
determined in their discretion by the Requisite Parties) by at least sixty (60)
days prior written notice thereof to the Collateral Agent, each other Secured
Party and the Company given by the Requisite Parties, provided that no
--------
resignation or removal shall be effective until a successor for the Collateral
Agent is appointed. Upon such resignation or removal, the Requisite Parties
shall have the right to appoint a successor Collateral Agent. If no successor
Collateral Agent shall have been so appointed by the Requisite Parties and shall
have accepted such appointment within forty-five (45) days after the retiring
Collateral Agent's giving of notice of resignation or the giving of notice of
removal, as the case may be, then the retiring Collateral Agent may, on behalf
of the Secured Parties, appoint a successor Collateral Agent, which shall
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be a financial institution having a long-term bank deposit rating of not less
than "A" from Standard & Poor's Ratings Group, a Division of XxXxxx-Xxxx, Inc.,
or "A-2" from Xxxxx'x Investors Service, Inc. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Collateral Agent, and
the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. After any retiring Collateral Agent's resignation or
removal, the provisions of this Agreement and the Security Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Collateral Agent. Any corporation into
which the Collateral Agent Bank may be merged or with which it may be
consolidated, or any corporation which acquires all or substantially all of the
corporate trust business of the Collateral Agent Bank, including the Collateral
agency established pursuant to this Agreement, or any corporation resulting from
any merger or consolidation to which the Collateral Agent Bank shall be a party,
shall be the successor to the Collateral Agent Bank without the execution of any
paper.
(S)5.5. Expenses and Indemnification by the Company. By
-------- --- --------------- -- --- -------
countersigning this Agreement, the Company agrees (a) to reimburse the
Collateral Agent, on demand, for any expenses incurred by the Collateral Agent,
including reasonable counsel fees and disbursements and compensation of agents,
arising out of, in any way connected with, or as a result of, the execution or
delivery of this Agreement or any Security Document or any agreement or
instrument contemplated hereby or thereby or the performance by the parties
hereto or thereto of their respective obligations hereunder or thereunder or in
connection with the enforcement or protection of the rights of the Collateral
Agent and the Secured Parties hereunder or under the Security Documents, (b) to
indemnify and hold harmless the Collateral Agent and its directors, officers,
employees and agents, on demand, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Collateral Agent Bank in its capacity as
the Collateral Agent or any of them in any way relating to or arising out of
this Agreement or any Security Document or any action taken or omitted by them
under this Agreement or any Security Document; provided that the Company shall
--------
not be liable to the Collateral Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Collateral Agent or any of its directors, officers, employees
or agents as determined by a final non-appealable order of a court of competent
jurisdiction, and (c) to indemnify and hold harmless the Collateral Agent, on
demand, from and against any and all liabilities which may be imposed on or
incurred by the Collateral Agent Bank (in its capacity as Collateral Agent) for
the net amount of taxes (after taking into account any deduction, credit or
other tax reduction or benefit available by reason of the imposition of any such
tax) in any jurisdiction in which the Collateral Agent Bank would not otherwise
be subject to tax except by reason of its acting under this Agreement or the
Security Documents (directly or through agents); provided that such
--------
indemnification for taxes (i) shall apply only in respect of taxes attributable
to the performance of the Collateral Agent's obligations hereunder and (ii)
shall in no event cover any federal, state, local or other taxes imposed upon
the Collateral Agent Bank with respect to or measured by its gross or net income
or profits or franchise or excise taxes. A statement by the Collateral Agent
that is submitted to the Company with respect to the amount of
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such expenses and containing a basic description thereof and/or the amount of
its indemnification obligation shall be prima facie evidence of the amount
----- -----
thereof owing to the Collateral Agent or the Collateral Agent Bank, as the case
may be. Except as otherwise expressly provided herein, the Collateral Agent
shall be under no obligation to take any action to protect, preserve or enforce
any rights or interests in the Collateral or to take any action in connection
with the execution or enforcement of its duties hereunder, whether on its own
motion or on request of any other Person, which in the opinion of the Collateral
Agent may involve loss, liability or expense to it, unless one or more of the
Requisite Parties shall offer and furnish security or indemnity, reasonably
satisfactory to the Collateral Agent in accordance herewith, against loss,
liability and expense to the Collateral Agent. Notwithstanding anything to the
contrary contained in this Agreement, or any Security Document, Credit Document
or any other document noted in Section 10 of this Agreement, in the event that
the Collateral Agent is entitled or required to commence an action to foreclose
on such Security Document, Credit Document or other document, or otherwise
exercise its remedies to acquire control or possession of any property
constituting all or part of the Collateral, the Collateral Agent shall not be
required to commence any such action or exercise any such remedy if the
Collateral Agent has determined in good faith that it may incur liability under
any federal or state environmental or hazardous waste law, rule or regulation as
the result of the presence at, or release on or from, any property of any
hazardous materials or waste, as defined under such federal or state laws,
unless it has received security or indemnity from a Person, in an amount and in
form, all satisfactory to the Collateral Agent in its sole discretion,
protecting the Collateral Agent from all such liability.
(S)5.6. Expenses and Indemnification by Secured Parties. Each of the
-------- --- --------------- -- ---------------
Banks, the LC Issuers and the Note Holders severally agrees (i) to reimburse the
Collateral Agent, on demand, in the amount of its pro rata share for any
--- ----
expenses referred to in (S)5.5 and fees due pursuant to (S)5.7 which shall not
have been reimbursed or paid by the Company or paid from the proceeds of
Collateral as provided herein and (ii) to indemnify and hold harmless the
Collateral Agent, the Collateral Agent Bank and its directors, officers,
employees and agents, on demand, in the amount of its pro rata share, from and
--- ----
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements referred to in
(S)5.5, to the extent the same shall not have been reimbursed by the Company or
paid from the proceeds of Collateral as provided herein; provided that no Bank,
--------
LC Issuer, or Note Holder shall be liable to the Collateral Agent or the
Collateral Agent Bank for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of, or the negligence
or willful misconduct in the failure to perform any express duty undertaken
under this Agreement to be performed by, the Collateral Agent or the Collateral
Agent Bank or any of its directors, officers, employees or agents. For purposes
of this (S)5.6, the pro rata share of any Bank's, Note Holder's, or LC Issuer's
---------
claim for which a reimbursement or indemnity obligation arises under this (S)5.6
shall be its percentage share of the sum of the Principal Obligations, the
Outstanding Bank LC Exposure and the Outstanding IRB LC Exposure as of the last
day of the calendar month preceding the date on which such claim was incurred
and on which any Outstanding Bank LC Exposure or Outstanding IRB LC Exposure
existed or any Principal Obligations were outstanding.
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(S)5.7. Collateral Agent's Fee. By countersigning this Agreement,
---------- ------- ---
the Company agrees to pay to the Collateral Agent for the Collateral Agent's own
account, a non-refundable Collateral Agent's fee, in an amount designated in
writing by the Collateral Agent to the Company, on the date this Agreement is
entered into and at the end of each quarterly period hereafter until the Secured
Obligations have been paid in full in cash, the commitments represented by the
Bank Credit Documents shall have expired or been reduced to zero or terminated,
there is no Outstanding IRB LC Exposure, and the Collateral Agent no longer has
any duties hereunder.
(S)5.8. Appointments of Co-Agent or Separate Agent.
------------------------------------------
(a) Notwithstanding any other provision of this Agreement, at
any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Collateral may at the time be
located, the Collateral Agent shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-
agent, or separate agent, of all or any part of the Collateral, and to vest
in such Person, in such capacity and for the benefit of the Secured
Parties, subject to the other provisions of this (S)5.8, such powers,
duties, obligations, rights and trusts as the Collateral Agent may consider
necessary or desirable. No co-agent or separate agent hereunder shall be
required to meet the terms of eligibility as a successor Collateral Agent
under (S)5.4 and no notice to Secured Parties of the appointment of any co-
agent or separate agent shall be required.
(b) Every separate agent and co-agent shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Collateral Agent shall be conferred or imposed upon and
exercised or performed by the Collateral Agent and such separate agent or
co-agent jointly (it being understood that such separate agent or co-agent
is not authorized to act separately without the Collateral Agent joining in
such act), except to the extent that under any laws of any jurisdiction in
which any particular act or acts are to be performed, the Collateral Agent
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of
title to the Collateral or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate agent or co-agent,
but solely at the direction of the Collateral Agent;
(ii) no agent hereunder shall be personally liable by reason of
any act or omission of any other agent hereunder appointed with due care or
for any action or omission in connection with its duties hereunder not
constituting gross negligence or willful misconduct; and
(iii) the Collateral Agent may at any time accept the resignation
of or remove any separate agent or co-agent.
-39-
(c) Any notice, request or other writing given to the Collateral
Agent shall be deemed to have been given to each of the then separate agents and
co-agents, as effectively as if given to each of them. Every instrument
appointing any separate agent or co-agent shall refer to this Agreement and the
conditions of this (S)5.8. Each separate agent and co-agent, upon its acceptance
of the agency conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Collateral Agent or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Collateral Agent. Every such instrument shall be filed with the Collateral
Agent.
(d) Any separate agent or co-agent may at any time appoint the
Collateral Agent, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect to
this Agreement on its behalf and in its name. If any separate agent or co-agent
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Collateral Agent, to the extent permitted by law, without the appointment of a
new or successor agent.
(S)6. REPRESENTATIONS AND WARRANTIES. Each of the Collateral Agent,
--------------- --- ----------
the Agent Bank, the LC Issuers, the Note Holders, the Owner Trustee, the
Indenture Trustee, and, by countersigning this Agreement, the Company and each
Guarantor, represents and warrants to the other parties hereto that (a) the
execution, delivery and performance of this Agreement (i) have been duly
authorized by all requisite corporate action on its part and, in the case of the
Agent Bank, by the appropriate number of Banks required under the Credit
Agreement, and (ii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which it
is subject or any judgment, order, writ, injunction, license or permit
applicable to it and will not conflict with any provision of its corporate
charter or bylaws or any agreement or other instrument binding upon it; and (b)
this Agreement has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable in accordance with its terms.
(S)7. AMENDMENT OF THIS AGREEMENT.
--------- -- ---- ---------
(S)7.1. Amendments. No modification or amendment of this Agreement
----------
shall be effective unless the same shall be in writing and signed by the
Majority Secured Parties and no modification or amendment of any Security
Document shall be effective, nor shall any waiver of any provision of any
Security Document be executed by the Collateral Agent, without the written
consent of the Requisite Parties; provided, however, (i) no amendment or waiver
-------- -------
shall adversely affect any of the Collateral Agent's rights, immunities or
rights to indemnification hereunder or under any of the Security Documents or
expand its duties or reduce any amount payable to the Collateral Agent hereunder
or under any Security Documents without the written consent of the Collateral
Agent; (ii) (S)(S)3 and 5 of this Agreement and any other provision of this
Agreement or of any of the Security Documents affecting the rights and
obligations of the Collateral Agent hereunder may not be amended without the
written consent of the Collateral Agent; (iii) no modification or amendment of
(x) (S)4.1(i), (S)4.9(a), (S)4.9(b) (except for the last sentence thereof),
(S)4.9(c), (S)4.9(e), (S)5.5, (S)5.7, clause (iii) of (S)7.1, (S)8, (S)11.5(a),
(S)11.5(b), (S)11.5(c), or (S)11.11 of this
-40-
Agreement, or (y) the definitions of Equity Interests, Equity Issuance,
Disposition, Net Proceeds, SBQ, Lease Claims, Lease Payment Claims on Lease
Expense/Indemnity Claims set forth herein, or (z) (S)4.8, if the effect of the
modification or amendment is to increase the vote that is required to give any
waiver with respect to any of the Credit Documents, shall be effective unless
the same shall have been consented to in writing by the Company; (iv) no
modification, amendment or waiver of the provisions of this Agreement or any of
the Security Documents that changes the amount that a Secured Party receives
from a distribution hereunder or that delays the time of a distribution or
expands the obligations of such Secured Party hereunder shall be effective
without the consent of such Secured Party, and (v) no amendment, modification or
waiver of the provisions of this Agreement or any of the Security Documents that
could directly or indirectly prejudice the Lease Claims in a discriminatory
manner vis-a-vis the other Secured Parties shall be effective without the
written consent of the Owner Trustee and, for so long as the Lien of the
Indenture remains outstanding, the Indenture Trustee, provided that the Agent
--------
Bank shall be authorized to give such consent on behalf of the Banks if the
Agent Bank represents that it has such authority under the Credit Agreement. Any
Security Document executed after the date hereof shall be approved by the
Requisite Parties as to form and, in the case of Collateral consisting of any
mortgage or deed of trust over a real estate interest, shall not be deemed to
have been accepted until such time as environmental site assessments
satisfactory to the Requisite Parties have been delivered if requested by such
Requisite Parties.
(S)7.2. Waivers. No waiver of any provision of this Agreement and no
-------
consent to any departure by any party hereto from the provisions hereof shall be
effective unless such waiver or consent shall be set forth in a written
instrument executed by the party against which it is sought to be enforced, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on any party hereto in
any case shall entitle such party to any other or further notice or demand in
the same, similar or other circumstances.
(S)8. APPROVAL BY THE COMPANY AND GUARANTORS; COMPANY'S OBLIGATIONS
-------- -- --- ------- --- ---------- --------- -----------
ABSOLUTE.
--------
(S)8.1. General. By countersigning this Agreement, each of the
-------
Company and the Guarantors acknowledges and consents to and agrees to perform
and be bound by each provision of this Agreement which expressly recites that
the Company or such Guarantor is agreeing to such provision by countersigning
this Agreement.
(S)8.2 Obligations Absolute. Nothing contained in this Agreement
--------------------
shall impair, as between the Company, or any Guarantor and the Agent, the Banks,
the LC Issuers, the Note Holders, the Owner Trustee and the Indenture Trustee,
(a) the obligation of the Company or such Guarantor to pay to the Agent Bank and
the Banks all amounts payable in respect of the Bank Debt as and when the same
shall become due and payable in accordance with the terms thereof, or prevent
the Agent Bank or any of the Banks (except as expressly otherwise provided in
this Agreement) from exercising all rights, powers and remedies otherwise
permitted by the Bank Credit Documents and by applicable law upon a default in
the payment of the Bank Debt, all, however, subject to the rights of the Note
Holders and LC Issuers as set forth in this Agreement; or (b) the obligation of
the Company or such Guarantor to pay to the Note Holders all amounts
-41-
payable in respect of the Note Debt as and when the same shall become due and
payable in accordance with the terms thereof, or prevent any of the Note Holders
(except as expressly otherwise provided in this Agreement) from exercising all
rights, powers and remedies otherwise permitted by the Note Credit Documents and
by applicable law upon a default in the payment of the Note Debt, all, however,
subject to the rights of the Agent Bank, the Banks and the LC Issuers as set
forth in this Agreement, or (c) the obligation of the Company or such Guarantor
to pay to the LC Issuers all amounts payable in respect of the Reimbursement
Agreement Debt as and when the same shall become due and payable in accordance
with the terms thereof, or prevent either of the LC Issuers (except as expressly
otherwise provided in this Agreement) from exercising all rights, powers and
remedies otherwise permitted by the Reimbursement Agreements and by applicable
law upon a default in the payment of the Reimbursement Agreement Debt, all,
however, subject to the rights of the Agent Bank, the Banks and the Note Holders
as set forth in this Agreement.
(S)8.3. No Additional Rights for Company Hereunder. If the
------------------------------------------
Collateral Agent, the Agent Bank, or any Secured Party shall enforce its rights
or remedies in violation of the terms of this Agreement, the Company and each
Guarantor agrees, by its consent hereto, that it shall not use such violation as
a defense to such enforcement by any such party nor assert such violation as a
counterclaim or basis for setoff or recoupment against any such party. Nothing
contained in this Agreement shall constitute a commitment by any Bank, LC Issuer
or Note Holder to make available to the Company any loans or letters of credit
which would comprise, in the case of the Banks, an Additional Advance Amount or,
in the case of the LC Issuers and the Note Holders, any additional loans or
letters of credit.
(S)9. COLLATERAL AGENT AS AGENT AND LENDER. If a Secured Party is
---------- ----- -- ----- --- ------
at any time the Collateral Agent or a co-agent or separate agent pursuant to
(S)5.8, such Secured Party shall, in its individual capacity and as Collateral
Agent, have the same obligations and the same rights, powers and privileges as
it would have had were it not also the Collateral Agent.
(S)10 INTENTIONALLY DELETED.
---------------------
(S)11. MISCELLANEOUS.
-------------
(S)11.1. Further Assurances, Etc. The Agent Bank, the Banks, the LC
------- ---------- ---
Issuers and the Note Holders and, by countersigning this Agreement, the Company
and each Guarantor, agree to execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Collateral
Agent, and shall take such other action, in each case as the Collateral Agent
(upon instructions from the Requisite Parties) or any Secured Party may
reasonably request (at the sole, but reasonable, cost and expense of the Company
which, by countersigning this Agreement, agrees to pay such reasonable costs and
expenses), to effectuate and carry out the provisions of this Agreement
including, without limitation, by recording or filing in such places as the
requesting party may deem desirable, this Agreement or such other documents or
instruments.
-42-
(S)11.2. No Individual Action; Marshaling; Etc. No holder of any
-- ---------- ------ ---------- ---
Secured Obligations may require the Collateral Agent to take or refrain from
taking any action hereunder or under any of the Security Documents or with
respect to any of the Collateral except as and to the extent expressly set forth
in this Agreement. The Collateral Agent shall have no duty to, and the Company
and each Guarantor hereby waives any and all right to require the Collateral
Agent to, marshal any assets or otherwise to take any actions with respect to
marshaling.
(S)11.3. Successors and Assigns.
---------- --- -------
(a) This Agreement shall be binding on and inure to the benefit
of the Collateral Agent, each of the Banks, the Agent Bank, each of the LC
Issuers, each of the Note Holders, the Owner Trustee, the Indenture Trustee, and
their respective successors and assigns, and shall be binding on the Company and
each Guarantor and their respective successors and permitted assigns. Each of
the Note Holders acknowledges that the provisions of this Agreement apply
regardless of any sale, transfer, pledge, assignment, hypothecation or other
disposition by such Note Holder of any Notes to any Person, each of the Xxxxx,
XX Issuers, Owner Trustee and Indenture Trustee agrees that the provisions of
this Agreement apply regardless of any sale, transfer, pledge, assignment,
hypothecation or other disposition by such Bank, LC Issuer, Owner Trustee or
Indenture Trustee of any instrument or right evidencing the Bank Debt,
Reimbursement Agreement Debt or Lease Claims to any Person. Each Secured Party
agrees that it shall not sell, transfer, assign or otherwise dispose of any
interest in any Secured Obligation unless the buyer, transferee or assignee
assumes in writing the obligations of such Secured Party under this Agreement;
provided, however, that the foregoing shall not prohibit any Secured Party from
-------- -------
pledging or otherwise granting a security interest in any Secured Obligation so
long as the pledgee or other secured party, as a condition to its retaining or
further transferring such Secured Obligation by way of enforcement of such
pledge or other security interest, assumes or causes its transferee to assume in
writing the obligations of such Secured Party under this Agreement.
(b) No Secured Party (other than the Owner Trustee or Indenture
Trustee) may sell any Secured Obligation or any interest therein to the Company
or any Subsidiary or affiliate of the Company, or accept any payment of a
Secured Obligation from an affiliate of the Company that is not a Guarantor,
without the consent of the Requisite Parties. The Agent Bank shall require each
Bank becoming a party to the Credit Agreement after the date of this Agreement
to execute and deliver to the other parties hereto a counterpart of this
Agreement. Any Note Holder assigning all or a portion of its note shall require
its assignee to execute and deliver to all other parties hereto a counterpart of
this Agreement.
(c) Nothing contained in this (S)11.3 shall permit any
assignment of any Secured Obligation created or evidenced by any Credit Document
if such assignment is not otherwise permitted by that Credit Document.
(S)11.4. Notices. All notices and other communications made or
-------
required to be given pursuant to this Agreement or the Security Documents shall
be in writing and shall be delivered in hand, mailed by United States registered
or certified first class mail, postage prepaid, sent by overnight courier or
sent by telecopy, confirmed by delivery via courier or postal service, addressed
as set forth on Schedule 11.4 hereto or to such other address or
-------------
-43-
addresses as any such party shall specify by notice given to the other parties.
Any such notice and other communications shall be deemed to have been duly given
or made and to have become effective (i) if delivered by hand, overnight courier
or facsimile, at the time of the receipt thereof, and (ii) if sent by registered
or certified first class mail postage prepaid, on the fourth (4th) business
day following the mailing thereof; provided, however, that a Notice of
-------- -------
Actionable Default or any other notice to be delivered to the Collateral Agent
pursuant to the terms of this Agreement shall not be deemed to have been
received by a Responsible Officer of the Collateral Agent until the Collateral
Agent actually receives such notice. Any party hereto (other than the Collateral
Agent) that is required or permitted to give notice to any other party hereto
may, in lieu of giving such notice directly to such other party, give such
notice to the Collateral Agent for delivery to such other party or parties,
provided that (a) the party giving such notice shall expressly instruct the
Collateral Agent in writing as to which parties to deliver such notice to, (b)
the Collateral Agent shall give such notice within two (2) Business Days after
receiving such request, and (c) such notice will only be deemed to have been
given (in accordance with clauses (i) and (ii) of the preceding sentence) to the
recipients thereof after such notice was given by the Collateral Agent, rather
than when such request was made to the Collateral Agent.
(S)11.5. Termination.
-----------
(a) The security interests created by the Security Documents,
including the security interest of the Collateral Agent, shall terminate and all
right, title and interest in the Collateral shall revert to the Company and its
successors and assigns upon the satisfaction of each of the following five
conditions:
(i) receipt by the Collateral Agent from the Agent Bank of
notice stating that either:
(A) the Bank Debt has been paid in full, in cash, and
all commitments under the Credit Agreement have terminated, been
canceled or been reduced to zero; or
--
(B) the Bank Debt no longer constitutes a Secured
Obligation under the Security Documents; and
---
(ii) receipt by the Collateral Agent from each of the Note
Holders of notice that either:
(A) the Note Debt held by such Note Holders has been
paid in full, in cash, in accordance with the Note Purchase Agreement;
or
--
(B) the Note Debt held by such Note Holders no longer
constitutes a Secured Obligation under the Security Documents; and
---
-44-
(iii) receipt by the Collateral Agent from each of the LC
Issuers of notice stating that:
(A) the Reimbursement Obligations due to it have been
paid in full, in cash, and it has no Outstanding IRB LC Exposure; or
--
(B) the Reimbursement Obligations due to it no longer
constitute a Secured Obligation under the Security Documents; and
---
(iv) receipt by the Collateral Agent from the Owner Trustee and
Indenture Trustee of notice that either:
(A) the Lease Claims have been paid in full, in cash, in
accordance with the Lease Documents; or
(B) the Lease Claims no longer constitute a Secured
Obligation under the Security Documents; and
(v) payment in full in cash of all amounts owed to the
Collateral Agent pursuant to (S)5.5 and (S)5.7.
The Secured Parties agree, severally and not jointly, to provide the
notices contemplated by (S)11.5(a)(i), (S)11.5(a)(ii), (S)11.5(a)(iii), and
(S)11.5(a)(iv) under the circumstances provided in Clause (A) of such Sections
for such notices to be capable of being given, upon the Company's request and in
any event as if (S)9-208 of the Uniform Commercial Code as in effect in the
State of New York on the date hereof were applicable to them as direct secured
parties.
(b) Upon the termination of the Collateral Agent's security interest
and the release of the Collateral in accordance with subsection (a) of this
(S)11.5, the Collateral Agent will promptly, at the Company's written request
and expense, (i) execute and deliver to the Company such documents as the
Company shall reasonably request to evidence the termination of such security
interest, the release of the Collateral or the discharge of the Guaranties and
(ii) deliver or cause to be delivered to the Company all property of the Company
constituting Collateral then held by Collateral Agent or any agent thereof.
(c) This Agreement shall terminate automatically when the security
interests granted under the Security Documents have terminated and the
Collateral has been released to the Company by the Collateral Agent as provided
in the foregoing provisions of this (S)11.5.
(d) If, at any time, any payment made or value received with respect
to any Secured Obligation must be returned by the Secured Party receiving the
same upon the insolvency, bankruptcy or reorganization of the Company or any
Guarantor, or otherwise, with the effect as though such payment had not been
made or value received, the security interest in the Collateral created by the
Security Documents in favor of the Collateral Agent and the rights of the
Collateral Agent to act as agent hereunder and to receive amounts pursuant to
this Agreement shall be reinstated to the extent those rights had previously
been terminated. In such
-45-
event each Secured Party (other than the Owner Trustee and the Indenture
Trustee) agrees that it will pay to the other Secured Parties such amounts so
that, after giving effect to the payments hereunder by all Secured Parties, the
amounts received by all Secured Parties are not in excess of the amounts to be
paid to them hereunder as though any payment so returned had not been made.
(e) Notwithstanding the foregoing, (S)5.5, (S)5.6 and (S)5.7 of
this Agreement shall survive, and remain operative and in full force and effect,
regardless of the termination of this Agreement.
(S)11.6. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
---------- ---
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PRINCIPLES).
(S)11.7. Waiver of Rights. Neither any failure nor any delay on the
------ -- ------
part of any party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, and a single or partial exercise thereof
shall not preclude any other or further exercise or the exercise of any other
right, power or privilege.
(S)11.8. Severability. In case any one or more of the provisions
------------
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provision.
(S)11.9. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
(S)11.10. Section Headings. The section headings used herein are for
------- --------
convenience of reference only and are not to affect the construction of or be
taken into consideration in interpreting this Agreement.
(S)11.11 Additional Fees. Contemporaneously with the execution
---------- ----
hereof, the Company (a) shall pay all reasonable counsel fees of the Owner
Trustee, the Indenture Trustee, the Lenders and the Owner Participants under the
Indenture in connection with the negotiation and execution of this Agreement.
In addition, the Company and the Guarantors shall pay all on-going fees and
expenses (including any fees and expenses of counsel) of the Owner Trustee, the
Indenture Trustee, the Owner Participants and the Lenders to enforce this
Agreement, and (b) agree to indemnify the Owner Participants against any adverse
tax consequences resulting from the Owner Trustee's entering into this
Agreement. The parties hereto acknowledge that the Owner Participants and the
Lenders are third party beneficiaries of this (S)11.11 and agree not to amend
this (S)11.11 as it pertains to the Owner Participants and the Lenders without
their prior written consent. The Company acknowledges and agrees that, in
executing and delivering this Agreement to the other parties hereto and in
performing its obligations hereunder, the Indenture Trustee shall be entitled to
all of the rights and benefits afforded to the Indenture Trustee under
-46-
the Lease Documents, including, without limitation, the Company's
indemnification obligations under Section 7.2 of the Participation Agreement, as
such term is defined in the Indenture, and the limitations on liability provided
under Section 10.11(a) of the Participation Agreement and Section 5.04 of the
Indenture, and the Company hereby agrees that its indemnification of the
Indenture Trustee under Section 7.2 of the Participation Agreement shall
include, subject to the provisions of Section 7.2(d) thereof, any and all Claims
(as defined therein) arising out of the Indenture Trustee's execution, delivery
and performance of its obligations under this Agreement.
(S)11.12. Complete Agreement. This Agreement constitutes the entire
-------- ---------
agreement among the parties hereto with respect to the subject matter hereof and
supersedes and all other prior representations, negotiations, writings,
memoranda and agreements. To the extent any provision of this Agreement
conflicts with the Credit Agreement, the Note Purchase Agreements or any other
Credit Document (other than the Lease Documents), as between the Secured Parties
the provisions of this Agreement shall be controlling. Nothing in this
Agreement, expressed or implied, is intended to confer upon any person other
than the parties hereto any rights or remedies under or by reason of this
Agreement.
(S)11.13. No Recourse to the Owner Trustee or Indenture Trustee. It
-- -------- -- --- ----- ------- -- --------- -------
is expressly understood and agreed by the parties hereto that, subject to the
proviso contained in this (S)11.13, all representations, warranties and
agreements of the Owner Trustee and Indenture Trustee hereunder shall be binding
upon the Owner Trustee and Indenture Trustee, only in their respective
capacities as Owner Trustee and Indenture Trustee and (except as expressly
provided herein) the Owner Trustee and Indenture Trustee shall not be liable in
their respective individual capacities for any breach thereof, except for their
gross negligence or willful misconduct, or for breach of their respective
agreements, representations and warranties contained herein, except to the
extent agreed or made in their respective individual capacities; provided,
--------
however, that nothing in this (S)11.13 shall be construed to limit in scope or
-------
substance those representations and warranties of the Owner Trustee or Indenture
Trustee made expressly in its individual capacity set forth herein. The terms
"Owner Trustee" and "Indenture Trustee" as used in this Agreement shall include
any successor thereto as Owner Trustee or Indenture Trustee.
[SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, the Collateral Agent Bank, the Collateral Agent,
the Agent Bank, the Banks, the Note Holders, the LC Issuers, the Owner Trustee,
the Indenture Trustee, the Company and each of the Guarantors have caused this
Collateral Agency and Intercreditor Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
STATE STREET BANK AND TRUST
COMPANY, in its individual capacity and
in its capacity as Collateral Agent
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
BANK OF AMERICA, N.A.
in its capacity as Agent Bank
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
BANK OF AMERICA, N.A.,
in its capacity as Bank and LC Issuer
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
PNC BANK, NATIONAL ASSOCIATION,
as LC Issuer
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
FIRST UNION NATIONAL BANK,
in its capacity as Indenture Trustee
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION as Successor
to PNC BANK, NATIONAL ASSOCIATION,
in its capacity as Owner Trustee
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
NOTE HOLDERS
PRINCIPAL LIFE INSURANCE COMPANY
(f/k/a Principal Mutual Life Insurance
Company)
By: Principal Capital Management, LLC,
A Delaware limited liability company,
Its authorized signatory
By
---------------------------------
Its:
By
---------------------------------
Its:
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By
---------------------------------
Name:
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By
---------------------------------
Name:
Title:
J. ROMEO & CO., as nominee for MONY LIFE
INSURANCE COMPANY OF NEW YORK
By
---------------------------------
Name:
Title:
THE RELIABLE LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By
---------------------------------
Name:
Title:
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
THE GREAT-WEST LIFE ASSURANCE COMPANY
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
---------------------------------
Name:
Title:
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
By
---------------------------------
Name:
Title:
AMERICAN UNITED LIFE INSURANCE COMPANY
By
---------------------------------
Name:
Title:
THE CANADA LIFE ASSURANCE COMPANY
(Xxxxxxxx & Co. as nominee)
By
---------------------------------
Name:
Title:
CANADA LIFE INSURANCE COMPANY OF AMERICA
(XXXXXXXX & CO. as nominee)
By
---------------------------------
Name:
Title:
CANADA LIFE INSURANCE COMPANY OF NEW YORK
(XXXXXXXX & CO. as nominee)
By
---------------------------------
Name:
Title:
AMERITAS LIFE INSURANCE CORP.
By: Ameritas Investment Advisors Inc.,
By
---------------------------------
Name:
Title:
BERKSHIRE LIFE INSURANCE COMPANY
By
---------------------------------
Name:
Title:
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY - CALIC
By
---------------------------------
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By
---------------------------------
Name:
Title:
NATIONWIDE LIFE INSURANCE
COMPANY (as successor to EMPLOYERS
LIFE INSURANCE COMPANY OF WAUSAU)
By
---------------------------------
Name:
Title:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By CIGNA Investments, Inc.,
its authorized agent
By
---------------------------------
Name:
Title:
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc., its authorized agent
By
---------------------------------
Name:
Title:
CIGNA PROPERTY AND CASUALTY INSURANCE COMPANY
By CIGNA Investments, Inc., its authorized agent
By
---------------------------------
Name:
Title:
CENTURY INDEMNITY COMPANY
By: CIGNA Investments, Inc., its authorized
agent
By
---------------------------------
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By
---------------------------------
Name:
Title:
THE STATE LIFE INSURANCE COMPANY
By
----------------------------
Name:
Title:
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By
----------------------------
Name:
Title:
FEDERATED LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By
----------------------------
Name:
Title:
FEDERATED MUTUAL INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By
----------------------------
Name:
Title:
MUTUAL TRUST LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By
----------------------------
Name:
Title:
GUARANTEE RESERVE LIFE INSURANCE
COMPANY
By: Advantus Capital Management, Inc.
By
--------------------------------
Name:
Title:
NATIONAL TRAVELERS LIFE COMPANY
By: Advantus Capital Management, Inc.
By
--------------------------------
Name:
Title:
SUN LIFE ASSURANCE COMPANY OF
CANADA (U.S.)
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
SUN LIFE ASSURANCE COMPANY OF CANADA
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
SUN LIFE INSURANCE AND ANNUITY
COMPANY OF NEW YORK
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
ASSURANCE COMPANY
(formerly known as Great Northern
Insured Annuity Corporation)
By
--------------------------------
Name:
Title:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
--------------------------------
Name:
Title:
ACACIA LIFE INSURANCE COMPANY
By: Ameritas Investment Advisors Inc.,
as Agent
By
--------------------------------
Name:
Title:
ACCEPTED AND AGREED TO:
BIRMINGHAM STEEL CORPORATION
By:
--------------------------
Name:
----------------------
Title:
---------------------
GUARANTORS:
AMERICAN STEEL & WIRE CORPORATION
BIRMINGHAM EAST COAST HOLDINGS, LLC
NORFOLK STEEL CORPORATION
PORT EVERGLADES STEEL CORPORATION
BIRMINGHAM RECYCLING INVESTMENT COMPANY
MIDWEST HOLDINGS, INC.
CUMBERLAND RECYCLERS, LLC
By:
--------------------------
Name:
----------------------
Title:
---------------------
SCHEDULE 11.4
(ADDRESSES)
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Bank of America, N.A.
000 Xxxxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxx, XX 00000
PNC Bank, National Association
One PNC Plaza
000 0/xx/ Xxxxxx, 0/xx/ Xxxxx
Xxxxxxxxxx, XX 00000-0000
First Union National Bank
Chase Manhattan Trust Company, National Association
Principal Life Insurance Company
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Jefferson-Pilot Life Insurance Company
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, XX 00000
J. Romeo & Co.
c/o MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
The Reliable Life Insurance Company
c/o Advantus Capital Management, inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Great-West Life & Annuity Insurance Company
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
The Great-West Life Assurance Company
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Teachers Insurance And Annuity Association of America
Phoenix Home Life Mutual Insurance Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
American United Life Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
The Canada Life Assurance Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Xxxxxx Life Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Xxxxxx Life Insurance Company of New York
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Ameritas Life Insurance Corp.
c/o Ameritas Investment Advisors, Inc.
0000 "X" Xxxxxx
Xxxxxxx, XX 00000-0000
Berkshire Life Insurance Company
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Provident Mutual Life Insurance Company
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000-000
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Connecticut General Life Insurance Company
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Life Insurance Company of North America
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
CIGNA Property and Casualty Insurance Company
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Century Indemnity Company
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
The State Life Insurance Company
c/o American United Life Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Minnesota Life Insurance Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Federated Life Insurance Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Federated Mutual Insurance Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Mutual Trust Life Insurance Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Guarantee Reserve Life Insurance Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
National Travelers Life Company
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000
Sun Life Assurance Company of Canada (U.S.)
One Sun Life Executive Park
Wellesley, MA 02481
Sun Life Assurance Company of Canada
One Sun Life Executive Park
Wellesley, MA 02481
Sun Life Insurance and Annuity Company of New York
One Sun Life Executive Park
Wellesley, MA 02481
General Electric Capital Assurance Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
The Lincoln National Life Insurance Company
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
ACACIA Life Insurance Company
c/o Ameritas Investment Advisors, Inc.
0000 "X" Xxxxxx
Xxxxxxx, XX 00000-0000
American Steel & Wire Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Birmingham East Coast Holdings, LLC
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Norfolk Steel Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Port Everglades Steel Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Birmingham Recycling Investment Company
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Midwest Holdings, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Cumberland Recycles, LLC
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
