Exhibit 10.4
AMENDMENT TO INTERCREDITOR AGREEMENT
Dated: November 13,1997
THIS AMENDMENT TO INTERCREDITOR AGREEMENT (this "Amendment") is made
and entered into this 13 day of November, 1997, by and among GSS HOLDING CORP.,
a Delaware corporation with an office at c/o Watermill Ventures, 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Holdings"); GULF STATES STEEL, INC. OF
ALABAMA ("GSS"), an Alabama corporation with its chief executive office and
principal place of business at 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000;
ALABAMA STRUCTURAL BEAM CORP. ("ASB"), an Alabama corporation with its chief
executive office and principal place of business at 000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000; (GSS and ASB being referred to collectively as
"Borrowers," and individually as a "Borrower"); the various financial
institutions parties from time to time to the Loan Agreement (as defined below)
(such financial institutions and their respective successors and assigns
referred to collectively herein as "Lenders," and individually as a "Lender");
and FLEET CAPITAL CORPORATION, a Rhode Island corporation with an office at 000
Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000 ("Fleet'), in its capacity
as collateral and administrative agent for the Lenders (together with its
successors and assigns in such capacity, "Agent"); and STATE STREET BANK AND
TRUST COMPANY with an office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Corporate Trust Department, as trustee for the benefit of those
holders of the First Mortgage Notes (together with its successors and assigns in
such capacity, "Trustee").
Recitals:
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WHEREAS, Holdings, Gulf States Steel Acquisition Corp. ("GS
Acquisition"), ASB Acquisition Corp. ("ASB Acquisition"), NationsBank of
Georgia, N.A. ("NationsBank") and Shawmut Bank Connecticut, National Association
("Shawmut") entered into a certain Intercreditor Agreement dated April 21, 1995
(as at any time amended, the "Intercreditor Agreement"), pursuant to which the
parties thereto set forth their relative rights with respect to the Collateral
and other rights, priorities and interests under the Revolving Credit Facility,
the Indenture and the other documents executed in connection therewith.
Capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms in the Intercreditor Agreement.
WHEREAS, GS Acquisition has changed its name to and is now known as
Gulf States Steel, Inc. of Alabama; ASB Acquisition has changed its name to and
is now known as Alabama Structural Beam Corp.; and State Street Bank and Trust
Company is the successor trustee to Shawmut Bank Connecticut, National
Association.
WHEREAS, GSS and ASB have requested that Lenders make available to them
a revolving credit facility, which shall be evidenced by a certain Loan and
Security Agreement dated on or about the date hereof among GSS, ASB, Agent and
Lenders (as at any time amended, the "Loan Agreement"), and which shall be used
to refinance their mutual and collective enterprise of manufacturing steel and
steel-related products.
WHEREAS, the Intercreditor Agreement and the Indenture contemplate that
GSS and ASB may from time to time enter into Permitted Bank Refinancings. GSS
and ASB now wish to enter into a Permitted Bank Refinancing with Agent and
Lenders.
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WHEREAS, the Intercreditor Agreement and the Indenture require that
Agent, as the representative of the Lenders under the Permitted Bank
Refinancing, execute this Amendment pursuant to which Agent will become the
"Agent" for all purposes under the Intercreditor Agreement and will agree to
comply with all the terms of the Intercreditor Agreement.
WHEREAS, the parties hereto desire to amend the Intercreditor Agreement
as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Amendments to Intercreditor Agreement. The Intercreditor
Agreement is hereby amended as follows:
(a) The definition of "Inventory" that is contained in
Article I of the Intercreditor Agreement is hereby deleted
in its entirety and the following new definition is
substituted in lieu thereof:
"Inventory" shall mean all now owned or hereafter
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acquired inventory of the Company or ASB including, without
limitation, all goods, merchandise, raw materials, work-in-
process and finished goods intended for sale or lease, of
every kind and description now or at any time hereafter owned
by the Company or ASB, together with all the containers,
packing, packaging, shipping and similar materials related
thereto, and including such inventory as is temporarily out of
the Company's or ASB's custody or possession and items in
transit and including any returns and repossessions upon any
accounts, documents, instruments or chattel paper relating to
or arising from the sale of inventory (as such documents,
instruments or chattel paper relate to the sale of such
inventory) and including, without limitation, all other
classes of merchandise, materials, parts, supplies, work-in-
process, inventories and finished products intended for sale
by the Company or ASB and all substitutions therefor or
replacements thereof, and all additions and accessions
thereto, and all invoices, ledgers, books of account, records,
files (whether in printed form or stored electronically),
computer programs, computer disks or tape files, computer
printouts, computer runs and other computer-prepared
information relating to any of the foregoing.
(b) Effective November 13, 1997, any and all references
contained in the Intercreditor Agreement to "Agent" or "NationsBank of Georgia,
N.A." shall be deemed to mean and refer to "Fleet Capital Corporation, in its
capacity as Agent, and its successors and assigns;" and any and all references
contained in the Intercreditor Agreement to `Banks" shall be deemed to mean and
refer to the Lenders listed on the signature pages hereof and their respective
successors and assigns.
2. Acknowledgments; Agreements; Reaffirmations.
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(a) Fleet, in its capacity as Agent, and Lenders, in
their capacities as Banks, each agrees that it shall be bound by and comply
with the terms of the Intercreditor Agreement, as modified herein.
(b) ASB, GSS and Trustee each (i) acknowledges and
agrees, and NationsBank joins in such acknowledgment and also agrees, that
effective November 13, 1997, (A) Fleet Capital Corporation, in its capacity as
Agent, is substituted for NationsBank of Georgia, N.A., as the Agent for all
purposes under the Intercreditor Agreement, and is entitled to all of
NationsBank's rights, remedies and privileges, and NationsBank is relieved and
fully discharged of any and all of its duties and obligations under the
Intercreditor Agreement, (B) the Lenders listed on the signature pages hereof,
are substituted for the Banks for all purposes under the Intercreditor
Agreement, and are entitled to all of the Banks' rights, remedies and privileges
thereunder; (ii) agrees to be bound by the Intercreditor Agreement, as modified
herein; and (iii) reaffirms that such Intercreditor Agreement is and shall
remain in full force and effect.
(c) Fleet, in its capacity as Agent, and Lenders, in
their capacities as Banks and Trustee each agree that NationsBank consents to
the substitution provided for in Section 2(b)(i)(A) but makes no representations
whatsoever to Agent, any Lender or to Trustee with respect to the validity or
effectiveness of the Intercreditor Agreement or with respect to the perfection
or priority of the liens thereunder.
3. Governing Law. This Amendment shall be governed by and
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construed in accordance with the internal laws of the State of New York.
4. Successors and Assigns. This Amendment shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
5. Counterparts; Telecopied Signatures. This Amendment may
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be executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
6. Further Assurances. Each of the parties hereto agrees to
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take such further actions as the other parties shall reasonably request from
time to time in connection herewith to evidence or give effect to the amendments
set forth herein or any of the transactions contemplated hereby.
7. Section Titles. Section title and references used in
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this Amendment shall be without substantive meaning of content of any kind
whatsoever and are not a part of the agreements among the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
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TRUSTEE:
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STATE STREET BANK AND TRUST COMPANY
By:
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Xxxxxxxxx X. Xxxxxx
Title: Vice President
GULF STATES STEEL, INC. OF ALABAMA
By:
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Xxxxxxx X. Xxxxx, Vice President
and Assistant Secretary
ALABAMA STRUCTURAL BEAM CORP.
By:
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Xxxxxxx X. Xxxxx, Vice President
and Assistant Secretary
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LENDERS:
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FLEET CAPITAL CORPORATION
By:
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Title:
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CONGRESS FINANCIAL CORPORATION
By:
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Title:
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AGENT:
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FLEET CAPITAL CORPORATION,
as Agent
By:
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Title:
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XXXXXX SOLELY FOR PURPOSES OF
SECTION 2(b)(i)(A):
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NATIONSBANK N.A., f/k/a NATIONSBANK, N.A. (SOUTH),
f/k/a NATIONSBANK OF GEORGIA, N.A.
as Agent:
By:
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Title:
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