SECURITY AGREEMENT dated as of June 12, 2009 between UNITED STATES STEEL CORPORATION and JPMORGAN CHASE BANK, N.A. as Collateral Agent
Exhibit 10.2
EXECUTION
VERSION
dated as
of
June 12,
2009
between
UNITED
STATES STEEL CORPORATION
and
JPMORGAN
CHASE BANK, N.A.
as
Collateral Agent
TABLE
OF CONTENTS
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Page
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Section
1. Definitions.
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2 | ||
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Section
2. Grant of
Transaction Liens.
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9 | ||
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Section
3. General
Representations and Warranties
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11 | ||
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Section
4. Further
Assurances; General Covenants
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12 | ||
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Section
5. Cash Collateral
Account
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15 | ||
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Section
6. Remedies
upon Event of Default.
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17 | ||
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Section
7. Application of
Proceeds.
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18 | ||
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Section
8. Fees And
Expenses; Indemnification
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21 | ||
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Section
9. Authority
To Administer Collateral
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22 | ||
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Section
10. Limitation on
Duty in Respect of Collateral
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22 | ||
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Section
11. General
Provisions Concerning the Collateral Agent
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23 | ||
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Section
12. Termination of
Transaction Liens; Release of Collateral.
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26 | ||
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Section
13. Notices
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27 | ||
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Section
14. No
Implied Waivers; Remedies Not Exclusive
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28 | ||
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Section
15. Successors and
Assigns
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29 | ||
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Section
16. Amendments and
Waivers.
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29 | ||
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Section
17. Choice of
Law
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29 | ||
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Section
18. WAIVER OF
JURY TRIAL
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29 | ||
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Section
19. Severability
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29 | ||
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Section
20. Additional
Secured Obligations
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30 | ||
EXHIBITS:
Exhibit
A Perfection
Certificate
i
SECURITY
AGREEMENT dated as of June 12, 2009 between United States Steel Corporation, a
Delaware corporation (together with its successors, the “Borrower”) and JPMorgan Chase
Bank, N.A., as Collateral Agent.
WHEREAS,
(i) the Borrower and certain other parties thereto have previously
entered into a Credit Agreement dated as of May 11, 2007 (as amended prior to
the date hereof, the “Existing
Credit Agreement”), and (ii) the Borrower and the Collateral Agent and
certain other parties thereto are entering into the Credit Agreement
(hereinafter defined), that amends and restates the Existing Credit Agreement,
and pursuant to which the Borrower intends to borrow funds and obtain letters of
credit for the purposes set forth therein;
WHEREAS,
it is a condition to effectiveness of the Credit Agreement that the Borrower
enter into this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Definitions.
(a) Terms Defined in Credit
Agreement. Terms defined in the Credit Agreement and not
otherwise defined in subsection 1(b) or 1(c) have, as used herein, the
respective meanings provided for therein.
(b) Terms Defined in
UCC. As used herein, each of the following terms has the
meaning specified in the UCC:
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Term
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UCC
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Account
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9-102
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Authenticate
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9-102
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Chattel
Paper
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9-102
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Deposit
Account
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9-102
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General
Intangibles
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9-102
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Instrument
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▇-▇▇▇
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▇▇▇▇▇▇▇▇▇
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9-102
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Letter-of-Credit
Right
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9-102
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Supporting
Obligation
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9-102
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2
(c) Additional
Definitions. The following additional terms, as used herein,
have the following meanings:
“Administrative Agent” means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the
Loan Documents, and its successors in such capacity.
“Article 9” means Article 9 of
the UCC.
“Blocked Account” means each of
the accounts described in Section 5(d) and any other lockbox, deposit,
concentration or similar account that has been subjected to a Blocked Account
Agreement pursuant to Section 4(a).
“Blocked Account Agreement”
means, with respect to any account, a blocked account agreement in favor of the
Collateral Agent, all in form and substance reasonably satisfactory to the
Collateral Agent.
“Borrower” has the meaning set
forth in the preamble to this Agreement.
“Cash Collateral Account” has
the meaning set forth in Section 5.
“Collateral” means all
property, whether now owned or hereafter acquired, on which a Lien is granted or
purports to be granted to the Collateral Agent pursuant to the Security
Documents.
“Collateral Agent” means
JPMorgan Chase Bank, N.A., in its capacity as Collateral Agent for the Secured
Parties under the Security Documents, and its successors in such
capacity.
“Contracts” means all contracts
for the sale, lease, exchange or other disposition of Inventory, whether or not
performed and whether or not subject to termination upon a contingency or at the
option of any party thereto.
“Credit Agreement” means the
Amended and Restated Credit Agreement dated as of May 11, 2007 and amended and
restated as of June 12, 2009 among the Borrower, the Lenders party thereto, the
LC Issuing Banks party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent.
“Derivative Contract” means,
with respect to any Derivative Obligation, the written contract evidencing such
Derivative Obligation.
3
“Derivative Obligation” means
any obligation of the Borrower in respect of any rate swap transaction, basis
swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions, in each case owing to any Person that was a Lender or
Lender Affiliate on the trade date for such Derivative Obligation (or an
assignee of such Person).
“Earn Out Condition” means the
following condition for terminating a Sweep Period: Facility
Availability shall have been greater than the greater of (x) the amount
that is 20% of the aggregate amount of the Commitments and (y) $150,000,000
for 60 consecutive days.
“Eligible Transferee” means (a)
a special-purpose company created and used solely for purposes of effecting a
Permitted Receivables Financing, whether or not a Subsidiary of the Borrower, or
(b) any other Person which is not a Subsidiary of the Borrower.
“Event of Default” means any
Event of Default as defined in the Credit Agreement and any similar event with
respect to any Secured Derivative Obligation that permits the acceleration of
the maturity thereof (or an equivalent remedy).
“Existing Receivables SPV
Accounts” has the meaning set forth in Section 5(b).
“First Secured Derivative
Obligations” means the Derivative Obligations that are designated by the
Borrower as “First Secured Derivative Obligations” pursuant to Section
20. For the avoidance of doubt, unless the context otherwise
requires, any reference herein to the “amount” or the “principal amount” of a
First Secured Derivative Obligation shall refer to then current ▇▇▇▇-to-Market
Value of such First Secured Derivative Obligation.
“Lien Grantor” means the
Borrower.
4
“Liquid Investment” means (i)
direct obligations of the United States or any agency thereof, (ii) obligations
guaranteed by the United States or any agency thereof, (iii) money market funds
that invest solely in obligations described in clauses (i) and (ii) of this
definition, (iv) time deposits and money market deposit accounts issued by or
guaranteed by or placed with a Lender, and (v) fully collateralized repurchase
agreements for securities described in clause (i) or (ii) entered into with a
Lender, provided in
each case that such Liquid Investment (x) matures within 30 days after it is
first included in the Collateral and (y) is in a form, and is issued and held in
a manner, that in the reasonable judgment of the Collateral Agent permits
appropriate measures to have been taken to perfect security interests
therein.
“Liquidated Secured Obligation”
means at any time any Secured Obligation (or portion thereof) that is not an
Unliquidated Secured Obligation at such time.
“▇▇▇▇-to-Market Value” means,
at any date with respect to any Derivative Obligation, the lesser of (i) the
amount that would be payable by the Borrower if the applicable Derivative
Contract were terminated at such time in circumstances in which the Borrower was
the defaulting party, taking into account the effect of any enforceable netting
arrangement between the parties to such Derivative Contract with respect to
mutual obligations in respect of other [Secured] Derivative Obligations between
such parties and (ii) the amount stated in the applicable Derivative Contract to
be the maximum amount which can be asserted as a secured claim against the
Collateral.
“Opinion of Counsel” means a
written opinion of legal counsel (who may be counsel to the Lien Grantor or
other counsel, in either case approved by the Collateral Agent, which approval
shall not be unreasonably withheld) addressed and delivered to the Collateral
Agent.
“own” refers to the possession
of sufficient rights in property to grant a security interest therein as
contemplated by UCC Section 9-203, and “acquire” refers to the acquisition of
any such rights.
“Perfection Certificate” means
a certificate from the Lien Grantor substantially in the form of Exhibit A, completed
and supplemented with the schedules contemplated thereby to the reasonable
satisfaction of the Collateral Agent, and signed by an officer of the Lien
Grantor.
“Permitted Liens” means (i) the
Transaction Liens and (ii) any other Liens on the Collateral permitted to be
created or assumed or to exist pursuant to the Credit Agreement, including such
Liens arising in connection with Permitted Receivables Financings (including the
Effective Date Receivables Financing).
5
“Pledged”, when used in
conjunction with any type of asset, means at any time an asset of such type that
is included (or that creates rights that are included) in the Collateral at such
time.
“Post-Petition Interest” means
any interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of the
Lien Grantor (or would accrue but for the operation of applicable bankruptcy or
insolvency laws), whether or not such interest is allowed or allowable as a
claim in any such proceeding.
“Proceeds” means all proceeds
of, and all other profits, products, rents or receipts, in whatever form,
arising from the collection, sale, lease, exchange, assignment, licensing or
other disposition of, or other realization upon, any Collateral, including all
claims of the Lien Grantor against third parties for loss of, damage to or
destruction of, or for proceeds payable under, or unearned premiums with respect
to, policies of insurance in respect of, any Collateral, and any condemnation or
requisition payments with respect to any Collateral.
“Receivables” means all
Accounts owned by the Lien Grantor and all other rights, titles or interests
which, in accordance with GAAP would be included in receivables on its balance
sheet (including any such Accounts and/or rights, titles or interests that might
be characterized as Chattel Paper, Instruments or General Intangibles under the
Uniform Commercial Code in effect in any jurisdiction), in each case arising
from the sale, lease, exchange or other disposition of Inventory, and all of the
Lien Grantor’s rights to any goods, services or other property related to any of
the foregoing (including returned or repossessed goods and unpaid seller’s
rights of rescission, replevin, reclamation and rights to stoppage in transit),
and all collateral security and supporting obligations of any kind given by any
Person with respect to any of the foregoing.
“Receivables SPV” means U.S.
Steel Receivables LLC, a Delaware limited liability company and a wholly-owned
Subsidiary of the Borrower.
“Related Documents” means the
Credit Agreement, any promissory notes issued pursuant to Section 2.17(d) of the
Credit Agreement, the Security Documents, the Subsidiary Guarantee Agreements
and the documentation governing the Secured Derivative Obligations.
“Related Parties” means, with
respect to any specified Person, such Person’s Affiliates and the respective
directors, officers, employees, agents and advisors of such Person and its
Affiliates.
6
“Related Transferred Rights”
has the meaning specified in Section 2(b) hereof.
“Release Conditions” means the
following conditions for terminating all the Transaction Liens:
(i) all
Commitments under the Credit Agreement shall have expired or been
terminated;
(ii) all
Liquidated Secured Obligations shall have been paid in full; and
(iii) no
Unliquidated Secured Obligation shall remain outstanding or such Unliquidated
Secured Obligation shall be cash collateralized to an extent and in a manner
reasonably satisfactory to each affected Secured Party.
“Second Secured Derivative
Obligations” means all Secured Derivative Obligations that are not First
Secured Derivative Obligations. For the avoidance of doubt, unless the context
otherwise requires, any reference herein to the “amount” or the “principal
amount” of a Second Secured Derivative Obligation shall refer to then current
▇▇▇▇-to-Market Value of such Second Secured Derivative Obligation.
“Secured Agreement”, when used
with respect to any Secured Obligation, refers collectively to each instrument,
agreement or other document that sets forth obligations of the Lien Grantor
and/or rights of the holder with respect to such Secured
Obligation.
“Secured Derivative
Obligations” means the Derivative Obligations that are designated by the
Borrower as additional Secured Obligations pursuant to Section 20.
“Secured Loan Obligations”
means all principal of all Loans and LC Reimbursement Obligations outstanding
from time to time under the Credit Agreement, all interest (including
Post-Petition Interest) on such Loans and LC Reimbursement Obligations and all
other amounts now or hereafter payable by the Borrower pursuant to the Loan
Documents.
“Secured Obligations” means the
Secured Loan Obligations and the Secured Derivative Obligations.
7
“Secured Parties” means the
holders from time to time of the Secured Obligations, and “Secured Party” means
any of them as the context may require.
“Security Documents” means this
Agreement, the Intercreditor Agreement and all other supplemental or additional
security agreements, control agreements, or similar instruments delivered
pursuant to the Loan Documents.
“Sweep Period” means (i) the
period that begins on the first date on which Facility Availability is less than
or equal to the greater of (x) the amount that is 20% of the aggregate amount of
the Commitments and (y) $150,000,000, and ends on the first date when all
Release Conditions are satisfied, or, solely with respect to the initial Sweep
Period, any earlier date on which the Earn Out Condition shall have been
satisfied; and (ii) each period that begins upon the occurrence of (x) an
Event of Default described in Section 7(a), Section 7(i), Section 7(j) or
Section 7(k) of the Credit Agreement, or (y) an Event of Default caused by
the Borrower’s failure to perform the covenant contained in Section 6.03 of the
Credit Agreement, and ends when no Event of Default is continuing; provided that, except in the
case of a Sweep Period that begins upon the occurrence of any Event of Default
described in Section 7(a), Section 7(i), Section 7(j) or Section 7(k) of the
Credit Agreement with respect to the Borrower (which Sweep Period shall commence
automatically upon the occurrence of such Event of Default), no Sweep Period
shall be deemed to have commenced unless and until the Collateral Agent shall
have so determined and shall have so notified the Borrower; and provided further that no
Sweep Period may commence prior to the Borrowing Base Effective
Date.
“Transaction Liens” means the
Liens granted by the Lien Grantor under the Security Documents.
“Transferred Receivables” means
any Receivables that have been sold, contributed or otherwise transferred to an
Eligible Transferee in connection with a Permitted Receivables Financing that is
not prohibited under the Credit Agreement or this Agreement (including, without
limitation, the Effective Date Receivables Financing).
“UCC” means the Uniform
Commercial Code as in effect from time to time in the State of New York; provided that, if perfection
or the effect of perfection or non-perfection or the priority of any Transaction
Lien on any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.
8
“Unliquidated Secured
Obligation” means, at any time, any Secured Obligation (or portion
thereof) that is contingent in nature or unliquidated at such time, including
any Secured Obligation that is:
(i) an
obligation to reimburse a bank for drawings not yet made under a letter of
credit issued by it;
(ii) any
other obligation (including any guarantee) that is contingent in nature at such
time; or
(iii) an
obligation to provide collateral to secure any of the foregoing types of
obligations.
(d) Terms
Generally. The definitions of terms herein (including those
incorporated by reference to the UCC or to another document) apply equally to
the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun includes the corresponding masculine, feminine
and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires
otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Sections, Exhibits and Schedules
shall be construed to refer to Sections of, and Exhibits and Schedules to, this
Agreement and (e) the word “property” shall be construed to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION
2. Grant of
Transaction Liens.
(a) The
Lien Grantor, in order to secure the Secured Obligations, grants to the
Collateral Agent for the benefit of the Secured Parties a continuing security
interest in all the following property of the Lien Grantor, whether now owned or
existing or hereafter acquired or arising and regardless of where located,
subject to the exceptions set forth in Section 2(b):
9
(i) all
Inventory;
(ii) all
Receivables;
(iii)
all Contracts;
(iv) all
Blocked Accounts and the Cash Collateral Account;
(v) all
books and records (including customer lists, credit files, computer programs,
printouts and other computer materials and records) of the Lien Grantor
pertaining to any of its Collateral; and
(vi) all
other Proceeds of the Collateral described in the foregoing clauses (i) through
(iv).
(b) The
Collateral shall not include Transferred Receivables and (i) rights to
payment and collections in respect of such Transferred Receivables,
(ii) security interests or Liens and property subject thereto purporting to
secure or guarantee payment of such Transferred Receivables, (iii) guarantees,
letters of credit, acceptances, insurance and other arrangements from time to
time supporting or securing payment of such Transferred Receivables, (iv) all
invoices, documents, books, records and other information with respect to such
Transferred Receivables or the obligors thereon, (v) with respect to any such
Transferred Receivables, the transferee’s interest in the product (including
returned product), the sale of which by such transferee gave rise to such
Transferred Receivables and (vi) all Proceeds of the items described in
subclauses 2(b)(i) through 2(b)(v) (collectively, the “Related Transferred
Rights”).
(c) With
respect to each right to payment or performance included in the Collateral from
time to time, the Transaction Lien granted therein includes a continuing
security interest in all right, title and interest of the Lien Grantor in and to
(i) any Supporting Obligation that supports such payment or performance and (ii)
any Lien that (x) secures such right to payment or performance or (y) secures
any such Supporting Obligation.
10
(d) The
Transaction Liens are granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or transfer or in any way affect
or modify, any obligation or liability of the Lien Grantor with respect to any
of the Collateral or any transaction in connection therewith.
SECTION
3. General
Representations and Warranties. The Lien Grantor represents
and warrants that:
(a) The
Lien Grantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction identified as its jurisdiction of organization in its
Perfection Certificate.
(b) The
Lien Grantor has good and marketable title to all its Collateral (subject to
exceptions that are, in the aggregate, not material), free and clear of any Lien
other than Permitted Liens.
(c) The
Lien Grantor has not performed any acts that might prevent the Collateral Agent
from enforcing any of the provisions of the Security Documents or that would
reasonably be expected to limit the Collateral Agent in any such
enforcement. The Lien Grantor has not authorized or entered into any
financing statement, security agreement, mortgage or similar or equivalent
document or instrument covering all or part of the Collateral owned by such Lien
Grantor nor is it aware that any such document or instrument is on file or of
record in any jurisdiction in which such filing or recording would be effective
to perfect or record a Lien on such Collateral, except financing statements,
mortgages or other similar or equivalent documents with respect to Permitted
Liens. After the Effective Date, no Collateral owned by such Lien
Grantor will be in the possession or under the control of any other Person
having a Lien thereon, other than a Permitted Lien.
(d) The
Transaction Liens on all Collateral owned by the Lien Grantor (i) have been
validly created, (ii) will attach to each item of such Collateral on the
Effective Date (or, if such Lien Grantor first obtains rights thereto on a later
date, on such later date) and (iii) when so attached, will secure all the
Secured Obligations.
(e) The
Lien Grantor has delivered a Perfection Certificate to the Collateral
Agent. The information set forth therein is correct and complete as
of the Effective Date. After the Effective Date, the Collateral Agent
or the Administrative Agent may obtain, at the Lien Grantor’s expense, a file
search report from each UCC filing office listed in its Perfection Certificate,
showing the filing made at such filing office to perfect the Transaction Liens
on the Collateral.
11
(f) The
Transaction Liens constitute perfected security interests in the Collateral
owned by the Lien Grantor to the extent that a security interest therein may be
perfected by filing pursuant to the UCC, prior to all Liens and rights of others
therein except Permitted Liens. No registration, recordation or
filing with any governmental body, agency or official is required in connection
with the execution or delivery of the Security Documents or is necessary for the
validity or enforceability thereof or for the perfection of the Transaction
Liens pursuant to the UCC or for the enforcement of the Transaction Liens
pursuant to the UCC.
(g) The
Lien Grantor has taken, and will continue to take, all actions necessary under
the UCC to perfect its interest in any Receivables purchased or otherwise
acquired by it, as against its assignors and creditors of its
assignors.
(h) The
Lien Grantor’s Collateral is insured as required by the Credit
Agreement.
(i) Any
Inventory produced by the Lien Grantor has or will have been produced in
compliance with the applicable requirements of the Fair Labor Standards Act, as
amended.
(j) The
Existing Receivables SPV Accounts are all of the accounts owned by Receivables
SPV. Other than (i) the Existing Receivables SPV Accounts, (ii) the
Cash Collateral Account, and (iii) any Blocked Account, there are no accounts
owned by the Lien Grantor or Receivables SPV into which any collections or other
payments or proceeds in respect of Pledged Receivables may be
deposited.
SECTION
4. Further
Assurances; General Covenants. The Lien Grantor covenants as
follows:
(a) The
Lien Grantor will, from time to time, at its own expense, execute, deliver,
authorize, file and record any statement, assignment, instrument, document,
agreement or other paper and take any other action (including (x) any filing of
financing or continuation statements under the UCC, (y) at any time when the
Effective Date Receivables Financing shall have terminated and been paid in full
and not been replaced with another Permitted Receivables Financing on terms
reasonably satisfactory to the Administrative Agent, causing any lockbox,
concentration or similar account into which payments with respect to Receivables
then owned by the Lien Grantor will be received to be subjected to Blocked
Account Agreements and (z) at any time when the Effective Date Receivables
Financing shall have terminated and been replaced with another Permitted
Receivables Financing on terms reasonably satisfactory to the Administrative
Agent, causing the appropriate parties to such replacement Permitted Receivables
Financing to execute an intercreditor agreement that is substantially identical
to the Intercreditor Agreement) that from time to time may be reasonably
necessary or desirable, or that the Collateral Agent may reasonably request, in
order to:
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(i) create,
preserve, perfect, confirm or validate the Transaction Liens on the
Collateral;
(ii) enable
the Collateral Agent and the other Secured Parties to obtain the full benefits
of the Security Documents; or
(iii) enable
the Collateral Agent to exercise and enforce any of its rights, powers and
remedies with respect to any of the Collateral.
To the
extent permitted by applicable law, the Lien Grantor authorizes the Collateral
Agent to execute and file such financing statements or continuation statements
without the Lien Grantor’s signature appearing thereon. The
Collateral Agent agrees to provide the Lien Grantor with copies of any such
financing statements and continuation statements. The Lien Grantor
agrees that a carbon, photographic, photostatic or other reproduction of this
Agreement or of a financing statement is sufficient as a financing statement to
the extent permitted by law. The Lien Grantor constitutes the
Collateral Agent its attorney-in-fact to execute and file all filings required
or so requested for the foregoing purposes, all acts of such attorney being
hereby ratified and confirmed; and such power, being coupled with an interest,
shall be irrevocable until all the Transaction Liens granted by the Lien Grantor
terminate pursuant to Section 12. The Borrower will pay the
reasonable and documented out-of-pocket costs of, or incidental to, any
recording or filing of any financing or continuation statements or other
documents recorded or filed pursuant hereto.
(b) The
Lien Grantor will not (i) change its name or structure as a corporation, or (ii)
change its location (determined as provided in UCC Section 9-307) unless it
shall have given the Collateral Agent prior notice thereof and delivered an
Opinion of Counsel with respect thereto in accordance with Section
4(c).
13
(c) At
least 30 days before it takes any action contemplated by Section 4(b), the Lien
Grantor, at its own expense, will cause to be delivered to the Collateral Agent
an Opinion of Counsel, in form and substance reasonably satisfactory to the
Collateral Agent, to the effect that (i) all financing statements and amendments
or supplements thereto, continuation statements and other documents required to
be filed or recorded in order to perfect and protect the Transaction Liens
against all creditors of and purchasers from the Lien Grantor after it takes
such action (except any applicable continuation statements specified in such
Opinion of Counsel that are to be filed more than six months after the date
thereof) have been filed or recorded in each office necessary for such purpose,
(ii) all fees and taxes, if any, payable in connection with such filings or
recordations have been paid in full and (iii) except as otherwise agreed by the
Required Lenders, such action will not adversely affect the perfection or
priority of the Transaction Lien on any Collateral to be owned by the Lien
Grantor after it takes such action or the accuracy of the Lien Grantor’s
representations and warranties herein relating to such Collateral.
(d) The
Lien Grantor will not sell, lease, exchange, assign or otherwise dispose of, or
grant any option with respect to, any of its Collateral; provided that the Lien
Grantor may do any of the foregoing unless (i) doing so would breach a covenant
in the Credit Agreement or (ii) an Event of Default shall have occurred and be
continuing and the Collateral Agent shall have notified the Lien Grantor that
its right to do so is terminated, suspended or otherwise
limited. Concurrently with any sale or other disposition (except a
lease) permitted by the foregoing proviso, the Transaction
Liens on the assets sold or disposed of (but not in any Proceeds arising from
such sale or disposition) will cease immediately without any action by the
Collateral Agent or any other Secured Party. The Collateral Agent
will, at the Borrower’s expense, execute and deliver to the Lien Grantor such
documents as the Lien Grantor shall reasonably request to evidence the fact that
any asset so sold or disposed of is no longer subject to a Transaction
Lien.
(e) The
Lien Grantor will, promptly upon request, provide to the Collateral Agent all
information and evidence concerning the Collateral that the Collateral Agent may
reasonably request from time to time to enable it to enforce the provisions of
the Security Documents.
(f) From
time to time upon request by the Collateral Agent, the Lien Grantor will, at its
own expense, cause to be delivered to the Secured Parties an Opinion of Counsel
reasonably satisfactory to the Collateral Agent as to such matters relating to
the transactions contemplated hereby as the Collateral Agent may reasonably
request.
14
SECTION
5. Cash
Collateral Account. (a) If and when required for purposes
hereof, the Collateral Agent will establish an account (the “Cash Collateral Account”), in
the name and under the exclusive control of the Collateral Agent, into which all
amounts owned by the Lien Grantor that are to be deposited therein pursuant to
the Loan Documents shall be deposited from time to time.
(b) On
or prior to the Effective Date (or such longer period as the Borrower and the
Collateral Agent may agree), the Lien Grantor shall have caused Receivables SPV
to have subjected all of its then existing accounts (collectively, the “Existing Receivables SPV
Accounts”) to Blocked Account Agreements, each of which Blocked Account
Agreements shall, to the extent the account subject thereto is a “Lock-Box
Account” or “Concentration Account” (each as defined in the Receivables Purchase
Agreement), (i) by its terms, first become effective immediately upon receipt by
the “Lockbox Box” or “Concentration Account Bank” (each as defined in the
Receivables Purchase Agreement) or other depositary bank at which such account
is maintained (the “Depositary
Bank”) of written notice from The Bank of Nova Scotia, as collateral
agent under the Effective Date Receivables Financing (the “Receivables Collateral
Agent”), specifying that the Effective Date Receivables Financing has
terminated and all monetary obligations in respect thereof have been satisfied
in full and that the blocked account agreement in effect with respect to such
“Lockbox Account” or “Concentration Account” (each as defined in the Receivables
Purchase Agreement) in connection with the Effective Date Receivables Financing
shall be terminated in accordance with its terms (or upon written notice from
the Collateral Agent to such effect (a copy of which shall be delivered by the
Lender Agent to the Receivables Collateral Agent, each Funding Agent (as defined
in the Intercreditor Agreement) and the Borrower), if (x) the Receivables
Collateral Agent has failed to deliver such notice within five Business Days of
the date on which it is initially obligated to do so pursuant to the
Intercreditor Agreement, (y) the Collateral Agent shall have delivered a Final
Notification Request (as defined in the Intercreditor Agreement) to the Funding
Agents (with a copy to the Receivables Collateral Agent and the Borrower), and
(z) the Funding Agents have failed to comply, or to cause the Receivables
Collateral Agent to comply, with such Final Notification Request within three
Business Days of the date on which such Final Notification Request is effective
under the Intercreditor Agreement), (ii) by its terms, terminate upon receipt by
the Depositary Bank of written notice from the Collateral Agent to the effect
that the Effective Date Receivables Financing has been replaced with another
Permitted Receivables Financing on terms reasonably satisfactory to the
Administrative Agent, such that the accounts of Receivables SPV and the lockbox
accounts of the Lien Grantor may be subjected to blocked account agreements in
connection with such replacement Permitted Receivables Financing and
(iii) expressly provide that its terms may not be amended or modified
without the consent of the Receivables Collateral Agent.
15
(c) If
directed to do so by the Collateral Agent at any time during a Sweep Period or
when an Event of Default has occurred and is continuing, the Borrower shall
cause to be deposited in the account referred to in clause (d), promptly upon
receipt thereof, (i) all payments received in respect of the Pledged Receivables
and (ii) all other Proceeds of the Collateral.
(d) On
or prior to the Effective Date, the Borrower shall have caused to be subjected
to a Blocked Account Agreement any lockbox and any corresponding deposit
account, any concentration account and any account into which payments from
Receivables SPV to the Borrower in respect of the purchase price of Transferred
Receivables may be received.
(e) Unless
(x) a Sweep Period shall have occurred and be continuing, (y) an Event of
Default shall have occurred and be continuing and the Required Lenders shall
have instructed the Collateral Agent to stop withdrawing amounts from the Cash
Collateral Account pursuant to this subsection or (z) the maturity of the Loans
(or other Secured Obligations) shall have been accelerated pursuant to Article 7
of the Credit Agreement (or otherwise), the Collateral Agent shall withdraw
amounts from the Cash Collateral Account (other than amounts required to be
deposited in the Cash Collateral Account pursuant to Section 2.11(b), 2.16(j) or
Section 5.10(b) of the Credit Agreement) and remit such amounts to, or as
directed by, the Borrower from time to time.
(f) If
an Event of Default shall have occurred and be continuing, the Collateral Agent
may (i) retain all cash and investments then held in the Cash Collateral
Account, (ii) liquidate any or all investments held therein and/or
(iii) withdraw any amounts held therein and apply such amounts as provided
in Section 7. Additionally, and without limiting the generality of
the foregoing, during any Sweep Period (i) all amounts held in the Cash
Collateral Account (other than amounts deposited therein pursuant to Section
2.11(b), Section 2.16(j) or Section 5.10(b) of the Credit Agreement as cash
collateral for the LC Exposure) shall be applied on a daily basis to the
outstanding principal balance of the Base Rate Loans or, if applicable, as
provided in Section 7 and (ii) following repayment in full of all outstanding
Base Rate Loans pursuant to clause (i), any remaining amounts held in the Cash
Collateral Account shall continue to be held in the Cash Collateral Account and
(other than amounts deposited therein pursuant to Section 2.11(b), Section
2.16(j) or Section 5.10(b) of the Credit Agreement as cash collateral for the LC
Exposure) shall be applied to the outstanding principal balance of maturing
Eurodollar Loans upon expiration of the Interest Periods applicable
thereto.
16
(g) Funds
held in the Cash Collateral Account may, until withdrawn or otherwise applied
pursuant hereto, be invested and reinvested in such Liquid Investments as the
Borrower shall request from time to time; provided that, if an Event of Default
shall have occurred and be continuing, the Collateral Agent may select such
Liquid Investments.
(h) If
immediately available cash on deposit in the Cash Collateral Account is not
sufficient to make any distribution or withdrawal to be made pursuant hereto,
the Collateral Agent will cause to be liquidated, as promptly as practicable,
such investments held in or credited to the Cash Collateral Account as shall be
required to obtain sufficient cash to make such distribution or withdrawal and,
notwithstanding any other provision hereof, such distribution or withdrawal
shall not be made until such liquidation has taken place.
SECTION
6. Remedies upon
Event of Default. (a) If an Event of Default shall have occurred and be
continuing, the Collateral Agent may exercise (or cause its sub-agents to
exercise) any or all of the remedies available to it (or to such sub-agents)
under the Security Documents.
(b) Without
limiting the generality of the foregoing, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise on behalf of the
Secured Parties all the rights of a secured party under the UCC (whether or not
in effect in the jurisdiction where such rights are exercised) with respect to
any Collateral and, in addition, the Collateral Agent may, without being
required to give any notice, except as herein provided or as may be required by
mandatory provisions of law, withdraw all cash held in the Cash Collateral
Account and apply such cash as provided in Section 7 and, if there shall be no
such cash or if such cash shall be insufficient to pay all the Secured
Obligations in full, sell, lease, license or otherwise dispose of the Collateral
or any part thereof. Notice of any such sale or other disposition
shall be given to the Lien Grantor as required by Section 9.
(c) Without
limiting the generality of the foregoing, during any Sweep Period, the
Collateral Agent may (i) exercise all of the remedies described in Section 5(f)
and (ii) cause all amounts constituting Collateral that are held in any lockbox,
concentration or other account of the Lien Grantor then subject to an effective
Blocked Account Agreement (it being understood that any Blocked Account
Agreement with respect to an account that is a “Lockbox Account” or
“Concentration Account” (each as defined in the Receivables Purchase Agreement)
shall only become effective in accordance with Section 5(b)(i)) to be
transferred on a daily basis to the Cash Collateral Account.
17
SECTION
7. Application of
Proceeds. (a) If an Event of Default
shall have occurred and be continuing, the Collateral Agent may apply (i) any
cash held in the Cash Collateral Account and (ii) the proceeds of any sale or
other disposition of all or any part of the Collateral, in the following order
of priorities:
first, to pay the
expenses of such sale or other disposition, including reasonable compensation to
agents of and counsel for the Collateral Agent, and all expenses, liabilities
and advances incurred or made by the Collateral Agent in connection with the
Security Documents, and any other amounts then due and payable to the Collateral
Agent pursuant to Section 8 or to any Agent pursuant to the Credit
Agreement;
second, to pay the
unpaid principal of the Secured Obligations (other than Second Secured
Derivative Obligations) ratably (or to provide for the payment thereof pursuant
to Section 7(b)), until payment in full of the principal of all such Secured
Obligations (other than Second Secured Derivative Obligations) shall have been
made (or so provided for);
third, to pay
ratably all interest (including Post-Petition Interest) on the Secured
Obligations (other than Secured Derivative Obligations) and all commitment and
other fees payable under the Related Documents, until payment in full of all
such interest and fees shall have been made;
fourth, to pay all
other Secured Obligations (other than Secured Derivative Obligations) ratably
(or to provide for the payment thereof pursuant to Section 7(b)), until payment
in full of all such other Secured Obligations (other than Secured Derivative
Obligations) shall have been made (or so provided for);
fifth, to pay ratably
the unpaid principal of the Second Secured Derivative Obligations (or to provide
payment therefor pursuant to Section 7(b)) until payment in full of the
principal of all Second Secured Derivative Obligations shall have been made (or
so provided for);
18
sixth, to pay ratably
the all interest (including Post-Petition Interest) on the Secured Derivative
Obligations, until payment in full of all such interest has been made;
and
finally, to pay to
the Lien Grantor, or as a court of competent jurisdiction may direct, any
surplus then remaining from the proceeds of the Collateral owned by
it.
The
Collateral Agent may make such distributions hereunder in cash or in kind or, on
a ratable basis, in any combination thereof.
Notwithstanding
anything to the contrary herein, the parties hereto agree that the unpaid
principal (i.e., the
▇▇▇▇-to-Market Value) of the First Secured Derivative Obligations shall be paid,
ratably with the unpaid principal of other Secured Obligations (other than
Second Secured Derivative Obligations), pursuant to clause second above; provided that if on the date
of any application of cash or proceeds in accordance with this Section 7(a), the
aggregate ▇▇▇▇-to-Market Value of First Secured Derivative Obligations exceeds
an amount equal to the difference of $75,000,000 less the aggregate
▇▇▇▇-to-Market Value of First Secured Derivative Obligations previously paid
pursuant to this Section 7(a) (such difference, the “Available Derivative Amount”
at such date), then: (x) the Secured Obligations payable pursuant to clause
second above shall be the ▇▇▇▇-to-Market Value of First Secured Derivative
Obligations in an aggregate amount equal to the Available Derivative Amount at
such date (which Available Derivative Amount shall represent and be comprised of
a ratable portion (the “Permitted Ratable Portion”) of
the ▇▇▇▇-to-Market Value of each First Secured Derivative Obligation), and (y)
the portion of the ▇▇▇▇-to-Market Value of each First Secured Derivative
Obligation that is in excess of the Permitted Ratable Portion referred to in
clause (x) above (and is therefore not paid ratably with the unpaid principal of
Secured Obligations pursuant to clause second above) shall, for all
purposes of this Section 7(a), be treated as and deemed to be unpaid principal
of a Second Secured Derivative Obligation, and shall be paid, ratably with the
unpaid principal of all other Second Secured Derivative Obligations, pursuant to
clause fifth
above.
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(b) If
at any time any portion of any monies collected or received by the Collateral
Agent would, but for the provisions of this Section 7(b), be payable pursuant to
Section 7(a) in respect of an Unliquidated Secured Obligation, the Collateral
Agent shall not apply any monies to pay such Unliquidated Secured Obligation but
instead shall request the holder thereof, at least 10 days before each proposed
distribution hereunder, to notify the Collateral Agent as to the maximum amount
of such Unliquidated Secured Obligation if then ascertainable (e.g., in the case of a letter
of credit, the maximum amount available for subsequent drawings
thereunder). If the holder of such Unliquidated Secured Obligation
does not notify the Collateral Agent of the maximum ascertainable amount thereof
at least two Domestic Business Days before such distribution, such Unliquidated
Secured Obligation will not be entitled to share in such
distribution. If such holder does so notify the Collateral Agent as
to the maximum ascertainable amount thereof, the Collateral Agent will allocate
to such holder a portion of the monies to be distributed in such distribution,
calculated as if such Unliquidated Secured Obligation were outstanding in such
maximum ascertainable amount. However, the Collateral Agent will not
apply such portion of such monies to pay such Unliquidated Secured Obligation,
but instead will hold such monies or invest such monies in Liquid
Investments. All such monies and Liquid Investments and all proceeds
thereof will constitute Collateral hereunder, but will be subject to
distribution in accordance with this Section 7(b) rather than Section
7(a). The Collateral Agent will hold all such monies and Liquid
Investments and the net proceeds thereof in trust until all or part of such
Unliquidated Secured Obligation becomes a Liquidated Secured Obligation,
whereupon the Collateral Agent at the request of the relevant Secured Party will
apply the amount so held in trust to pay such Liquidated Secured Obligation;
provided that, if the
other Secured Obligations theretofore paid pursuant to the same clause of
Section 7(a) (i.e.,
clause second, fourth or fifth) were not paid in full,
the Collateral Agent will apply the amount so held in trust to pay the same
percentage of such Liquidated Secured Obligation as the percentage of such other
Secured Obligations theretofore paid pursuant to the same clause of Section
7(a). If (i) the holder of such Unliquidated Secured Obligation shall
advise the Collateral Agent that no portion thereof remains in the category of
an Unliquidated Secured Obligation and (ii) the Collateral Agent still holds any
amount held in trust pursuant to this Section 7(b)in respect of such
Unliquidated Secured Obligation (after paying all amounts payable pursuant to
the preceding sentence with respect to any portions thereof that became
Liquidated Secured Obligations), such remaining amount will be applied by the
Collateral Agent in the order of priorities set forth in Section
7(a).
(c) In
making the payments and allocations required by this Section, the Collateral
Agent may rely upon information supplied to it pursuant to Section
11(g). All distributions made by the Collateral Agent pursuant to
this Section shall be final (except in the event of manifest error) and the
Collateral Agent shall have no duty to inquire as to the application by any
Secured Party of any amount distributed to it.
20
SECTION
8. Fees And
Expenses; Indemnification. (a) The Lien Grantor will
forthwith upon demand pay to the Collateral Agent:
(i) the
amount of any taxes that the Collateral Agent may have been required to pay by
reason of the Transaction Liens or to free any Collateral from any other Lien
thereon;
(ii) the
amount of any and all reasonable out-of-pocket expenses, including transfer
taxes and reasonable and documented fees and expenses of counsel and other
experts, that the Collateral Agent may incur in connection with (x) the
administration or enforcement of the Security Documents, including such expenses
as are incurred to preserve the value of the Collateral or the validity,
perfection, rank or value of any Transaction Lien, (y) the collection, sale or
other disposition of any Collateral or (z) the exercise by the Collateral Agent
of any of its rights or powers under the Security Documents;
(iii) the
amount of any fees that the Lien Grantor shall have agreed in writing to pay to
the Collateral Agent and that shall have become due and payable in accordance
with such written agreement; and
(iv) the
amount required to indemnify the Collateral Agent for, or hold it harmless and
defend it against, any loss, liability or expense (including the reasonable and
documented fees and expenses of its counsel and any experts or sub-agents
appointed by it hereunder) incurred or suffered by the Collateral Agent in
connection with the Security Documents, except to the extent that such loss,
liability or expense arises from the Collateral Agent’s gross negligence or
willful misconduct or a breach of any duty that the Collateral Agent has under
this Agreement (after giving effect to Sections 10 and 11).
Any such
amount not paid to the Collateral Agent on demand will bear interest for each
day thereafter until paid at a rate per annum equal to the sum of 2.00% plus the
Base Rate for such day plus the Applicable Rate that would, in the absence of an
Event of Default, be applicable to the Base Rate Loans for such
day.
(b) If
any transfer tax, documentary stamp tax or other tax is payable in connection
with any transfer or other transaction provided for in the Security Documents,
the Lien Grantor will pay such tax and provide any required tax stamps to the
Collateral Agent or as otherwise required by law.
21
SECTION
9. Authority To
Administer Collateral. The Lien Grantor irrevocably appoints
the Collateral Agent its true and lawful attorney, with full power of
substitution, in the name of the Lien Grantor, any Secured Party or otherwise,
for the sole use and benefit of the Secured Parties, but at the Lien Grantor’s
expense, to the extent permitted by law to exercise, at any time and from time
to time while an Event of Default shall have occurred and be continuing, all or
any of the following powers with respect to all or any of the Collateral (to the
extent necessary to pay the Secured Obligations in full):
(a) to
demand, ▇▇▇ for, collect, receive and give acquittance for any and all monies
due or to become due upon or by virtue thereof,
(b) to
settle, compromise, compound, prosecute or defend any action or proceeding with
respect thereto,
(c) to
sell, lease, license or otherwise dispose of the same or the proceeds or avails
thereof, as fully and effectually as if the Collateral Agent were the absolute
owner thereof, and
(d) to
extend the time of payment of any or all thereof and to make any allowance or
other adjustment with reference thereto;
provided that, except in the
case of Collateral that is perishable or threatens to decline speedily in value
or is of a type customarily sold on a recognized market, the Collateral Agent
will give the Lien Grantor at least ten days’ prior written notice of the time
and place of any public sale thereof or the time after which any private sale or
other intended disposition thereof will be made. Any such notice
shall (i) contain the information specified in UCC Section 9-613, (ii) be
Authenticated and (iii) be sent to the parties required to be notified pursuant
to UCC Section 9-611(c); provided that, if the
Collateral Agent fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed on
it as a matter of law under the UCC.
SECTION
10. Limitation on
Duty in Respect of Collateral. Beyond the exercise of
reasonable care in the custody and preservation thereof, the Collateral Agent
will have no duty as to any Collateral in its possession or control or in the
possession or control of any sub-agent or bailee or any income therefrom or as
to the preservation of rights against prior parties or any other rights
pertaining thereto. The Collateral Agent will be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession or control if such Collateral is accorded treatment substantially
equal to that which it accords its own property, and will not be liable or
responsible for any loss or damage to any Collateral, or for any diminution in
the value thereof, by reason of any act or omission of any sub-agent or bailee
selected by the Collateral Agent in good faith or by reason of any act or
omission by the Collateral Agent pursuant to instructions from the
Administrative Agent, except to the extent that such liability arises from the
Collateral Agent’s gross negligence or willful misconduct.
22
SECTION
11. General
Provisions Concerning the Collateral Agent. (a) Authority. The
Collateral Agent is authorized to take such actions and to exercise such powers
as are delegated to the Collateral Agent by the terms of the Security Documents,
together with such actions and powers as are reasonably incidental
thereto.
(b) Coordination with Secured
Parties. To the extent requested to do so by any Secured
Party, the Collateral Agent will promptly notify such Secured Party of each
notice or other communication received by the Collateral Agent hereunder and/or
deliver a copy thereof to such Secured Party. As to any matters not
expressly provided for herein (including (i) the timing and methods of
realization upon the Collateral and (ii) the exercise of any power that the
Collateral Agent may, but is not expressly required to, exercise under any
Security Document), the Collateral Agent shall act or refrain from acting in
accordance with written instructions from the Required Lenders or, in the
absence of such instructions, in accordance with its discretion (subject to the
following provisions of this Section).
(c) Rights and Powers as a Secured
Party. The Person serving as the Collateral Agent shall, in
its capacity as a Secured Party, have the same rights and powers as any other
Secured Party and may exercise the same as though it were not the Collateral
Agent. Such Person and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower, any of
its Subsidiaries or their respective Affiliates as if it were not the Collateral
Agent hereunder.
23
(d) Limited Duties and
Responsibilities. The Collateral Agent shall not have any
duties or obligations under the Security Documents except those expressly set
forth therein. Without limiting the generality of the foregoing, (a)
the Collateral Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether an Event of Default has occurred and is
continuing, (b) the Collateral Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Security Documents that the
Collateral Agent is required in writing to exercise by the Required Lenders, and
(c) except as expressly set forth in the Security Documents, the Collateral
Agent shall not have any duty to disclose, and shall not be liable for any
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Collateral Agent or any of its Affiliates in any capacity. The
Collateral Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02 of the Credit Agreement) or in the absence of its own
gross negligence or willful misconduct. The Collateral Agent shall not be
responsible for the existence, genuineness or value of any Collateral or for the
validity, perfection, priority or enforceability of any Transaction Lien,
whether impaired by operation of law or by reason of any action or omission to
act on its part under the Security Documents. The Collateral Agent shall be
deemed not to have knowledge of any Event of Default unless and until written
notice thereof is given to the Collateral Agent by the Borrower or a Secured
Party, and the Collateral Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Security Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Security Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Security
Document or any other agreement, instrument or document, or (v) the satisfaction
of any condition set forth in any Security Document.
(e) Authority to Rely on Certain
Writings, Statements and Advice. The Collateral Agent shall be
entitled to rely on, and shall not incur any liability for relying on, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Collateral Agent also may rely on any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Collateral Agent may consult with legal counsel (who may be counsel for the
Borrower or any of its Subsidiaries), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountant or
expert. The Collateral Agent may rely conclusively on advice from the
Administrative Agent as to whether at any time (i) an Event of Default under the
Credit Agreement has occurred and is continuing, (ii) the maturity of the Loans
has been accelerated or (iii) any proposed action is permitted or required by
the Credit Agreement.
24
(f) Sub-Agents and Related
Parties. The Collateral Agent may perform any of its duties
and exercise any of its rights and powers through one or more sub-agents
appointed by it. The Collateral Agent and any such sub-agent may
perform any of its duties and exercise any of its rights and powers through its
Related Parties. The exculpatory provisions of Section 10 and this
Section shall apply to any such sub-agent and to the Related Parties of the
Collateral Agent and any such sub-agent.
(g) Information as to Secured
Obligations and Actions by Secured Parties. For all purposes
of the Security Documents, including determining the amounts of the Secured
Obligations and whether a Secured Obligation is an Unliquidated Secured
Obligation or not, or whether any action has been taken under any Secured
Agreement, the Collateral Agent will be entitled to rely on information from (i)
the Administrative Agent for information as to the Lenders, the Administrative
Agent or the Collateral Agent, their Secured Obligations and actions taken by
them, (ii) any Secured Party for information as to its Secured Obligations and
actions taken by it, to the extent that the Collateral Agent has not obtained
such information from the foregoing sources, and (iii) the Borrower, to the
extent that the Collateral Agent has not obtained information from the foregoing
sources.
(h) Within
two Business Days after it receives or sends any notice referred to in this
subsection, the Collateral Agent shall send to the Administrative Agent and each
Secured Party requesting notice thereof, copies of any notice given by the
Collateral Agent to the Lien Grantor, or received by it from the Lien Grantor,
pursuant to Section 6, 7, 9, 11(j) or 12; provided that such Secured
Party has, at least five Business Days prior thereto, delivered to the
Collateral Agent a written notice (i) stating that it holds one or more Secured
Obligations and wishes to receive copies of such notices and (ii) setting forth
its address, facsimile number and e-mail address to which copies of such notices
should be sent.
(i) The
Collateral Agent may refuse to act on any notice, consent, direction or
instruction from the Administrative Agent or any Secured Parties or any agent,
trustee or similar representative thereof that, in the Collateral Agent’s
opinion, (i) is contrary to law or the provisions of any Security Document, (ii)
may expose the Collateral Agent to liability (unless the Collateral Agent shall
have been indemnified, to its reasonable satisfaction, for such liability by the
Secured Parties that gave, or instructed the Agent to give, such notice,
consent, direction or instruction) or (iii) is unduly prejudicial to Secured
Parties not joining in such notice, consent, direction or
instruction.
25
(j) Resignation; Successor Collateral
Agent. Subject to the appointment and acceptance of a
successor Collateral Agent as provided in this subsection, the Collateral Agent
may resign at any time by notifying the Secured Parties and the
Borrower. Upon any such resignation, the Required Lenders shall have
the right, in consultation with the Lien Grantor, to appoint a successor
Collateral Agent. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Collateral Agent gives notice of its resignation, then the retiring
Collateral Agent may, on behalf of the Secured Parties, appoint a successor
Collateral Agent which shall be a bank with an office in the United States, or
an Affiliate of any such bank. Upon acceptance of its appointment as
Collateral Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent hereunder, and the retiring Collateral Agent shall be
discharged from its duties and obligations hereunder. The fees
payable by the Lien Grantor to a successor Collateral Agent shall be the same as
those payable to its predecessor unless otherwise agreed by the Lien Grantor and
such successor. After the Collateral Agent’s resignation hereunder,
the provisions of this Section and Section 10 shall continue in effect for the
benefit of such retiring Collateral Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of
them while the retiring Collateral Agent was acting as Collateral
Agent.
SECTION
12. Termination of
Transaction Liens; Release of Collateral.
(a) The
Transaction Liens shall terminate when all the Release Conditions are
satisfied.
(b) The
Transaction Liens (x) with respect to any Pledged Receivables shall terminate
when such Receivables have become Transferred Receivables and (y) with respect
to any other Collateral shall terminate upon the sale of such Collateral to a
Person other than the Lien Grantor in a transaction not prohibited by the Credit
Agreement. In each case, such termination shall not require the
consent of any Secured Party, and the Collateral Agent and any third party shall
be fully protected in relying on a certificate of the Lien Grantor as to whether
any Pledged Receivables qualify as Transferred Receivables (including without
limitation whether the transfer thereof is permitted under the Credit Agreement
and this Agreement).
26
(c) In
the case of any Pledged Receivables, the Transaction Liens with respect to the
Related Transferred Rights shall terminate when such Pledged Receivables become
Transferred Receivables. Such termination shall not require the
consent of any Secured Party. If the Borrower delivers a certificate
pursuant to Section 12(b) stating that any Pledged Receivables qualify as
Transferred Receivables, the Collateral Agent and any third party shall be fully
protected in relying on such certificate as conclusive proof that the Related
Transferred Rights are not Collateral.
(d) At
any time before the Transaction Liens terminate, the Collateral Agent may, at
the written request of the Lien Grantor, (i) release any Collateral (but not all
or substantially all of the Collateral) with the prior written consent of the
Required Lenders or (ii) release all or substantially all of the Collateral with
the prior written consent of all the Lenders.
(e) Upon
any termination of a Transaction Lien or release of Collateral, the Collateral
Agent will, at the expense of the Lien Grantor, execute and deliver to the Lien
Grantor such documents as the Lien Grantor shall reasonably request to evidence
the termination of such Transaction Lien or the release of such Collateral, as
the case may be.
SECTION
13. Notices. Except
in the case of notices and other communications expressly permitted to be given
by telephone, each notice, request or other communication given to any party
hereunder shall be in writing delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy (or, in the
case of any notice to a Secured Party pursuant to Section 11(b) or Section
11(h), transmitted by e-mail), as follows:
(a) in
the case of the Lien Grantor:
United
States Steel Corporation
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Assistant Treasurer
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
27
(b) in
the case of the Collateral Agent:
▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A.
Loan and
Agency Services Group
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
with a
copy to:
▇.▇.
▇▇▇▇▇▇ Chase Bank, N.A.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇)
E-mail:
▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
(c) in
the case of any Lender, to the Collateral Agent to be forwarded to such Lender
at its address or facsimile number specified in or pursuant to Section 9.01 of
the Credit Agreement; or
(d) in
the case of any Secured Party requesting notice under Section 11(h), such
address, facsimile number or e-mail address as such party may hereafter specify
for the purpose by notice to the Collateral Agent.
All
notices and other communications given to any party hereto in accordance with
the terms of this Agreement shall be deemed to have been given on the date of
receipt. Any party may change its address, facsimile number and/or
e-mail address for purposes of this Section by giving notice of such change to
the Collateral Agent and the Lien Grantor in the manner specified
above.
SECTION
14. No Implied
Waivers; Remedies Not Exclusive. No failure by the Collateral
Agent or any Secured Party to exercise, and no delay in exercising and no course
of dealing with respect to, any right or remedy under any Related Document shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent or any Secured Party of any right or remedy under any Related
Document preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies specified in the
Related Documents are cumulative and are not exclusive of any other rights or
remedies provided by law.
28
SECTION
15. Successors and
Assigns. This Agreement is for the benefit of the Collateral
Agent and the Secured Parties. If all or any part of any Secured
Party’s interest in any Secured Obligation is assigned or otherwise transferred,
the transferor’s rights hereunder, to the extent applicable to the obligation so
transferred, shall be automatically transferred with such
obligation. This Agreement shall be binding on the Lien Grantor and
its successors and assigns.
SECTION
16. Amendments and
Waivers. Neither this Agreement nor any provision hereof may be waived,
amended, modified or terminated except pursuant to an agreement or agreements in
writing entered into by the parties hereto, with the consent of such Lenders
and/or Agents as are required to consent thereto under Section 9.02(b) of the
Credit Agreement.
SECTION
17. Choice of
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, except as otherwise required by
mandatory provisions of law and except to the extent that remedies provided by
the laws of any jurisdiction other than the State of New York are governed by
the laws of such jurisdiction.
SECTION
18. WAIVER OF JURY
TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY
SECURITY DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION
19. Severability. If
any provision of any Security Document is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of the Security Documents shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Collateral
Agent and the Secured Parties in order to carry out the intentions of the
parties thereto as nearly as may be possible and (ii) the invalidity or
unenforceability of such provision in such jurisdiction shall not affect the
validity or enforceability thereof in any other jurisdiction.
29
SECTION
20. Additional
Secured Obligations. (a) Subject to the requirements set forth
in clauses (b) and (c) of this Section 20, the Borrower from time to time may
designate any Derivative Obligation as a “Secured Derivative Obligation” for
purposes hereof by delivering to the Collateral Agent a certificate signed by a
Financial Officer (an “Additional Secured Obligation
Certificate”) that (i) identifies such Derivative Obligation and the
related Derivative Contract (including the name and address of the counterparty
thereto, the notional principal amount thereof and the expiration date thereof),
(ii) states that such Derivative Obligation has been entered into in the course
of the ordinary business practice of the Borrower and not for speculative
purposes, (iii) specifies, as of the date such Derivative Obligation is entered
into (and after giving effect to its designation as a First Secured Derivative
Obligation or Second Secured Derivative Obligation hereunder, as the case may
be), the aggregate ▇▇▇▇-to-Market Value of all Secured Derivative Obligations
then currently designated as “First Secured Derivative Obligations” pursuant to
this Section 20, and (iv) specifies (subject to the requirements of clause (c)
below) whether such Derivative Obligation will be designated as a First Secured
Derivative Obligation or a Second Secured Derivative Obligation
hereunder.
(b) Notwithstanding
anything to the contrary herein, no Derivative Obligation shall be designated as
a “Secured Derivative Obligation” hereunder unless (and the Borrower shall
certify in the relevant Additional Secured Obligation Certificate that): (i) at
or prior to the time the relevant Derivative Contract was executed, the Borrower
and the Lender or Lender Affiliate party thereto expressly agreed in writing
that such Derivative Obligation would constitute a “Secured Derivative
Obligation” entitled to the benefits of the Security Documents and (ii) the
Lender or Lender Affiliate party thereto shall have delivered a notice to the
Collateral Agent (or, in the case of a Lender Affiliate, an instrument in form
and substance reasonably satisfactory to the Collateral Agent) to the effect set
forth in subclause (i) of this clause (b), and acknowledging and agreeing to be
bound by the terms of this Agreement with respect to such Derivative
Obligation.
(c) Notwithstanding
anything to the contrary herein, no Secured Derivative Obligation shall be
designated as a First Secured Derivative Obligation hereunder unless (and the
Borrower shall certify in the relevant Additional Secured Obligation Certificate
that): (i) as of the date such Derivative Obligation is entered into (and after
giving effect to its designation as a First Secured Derivative Obligation), the
aggregate ▇▇▇▇-to-Market Value of all Secured Derivative Obligations then
currently designated as First Secured Derivative Obligations shall not exceed
$75,000,000, and (ii) at or prior to the time the relevant Derivative Contract
was executed, the Borrower and the Lender or Lender Affiliate party thereto
expressly agreed in writing that such Derivative Obligation would be designated
as a First Secured Derivative Obligation entitled to the benefits of the
Security Documents.
30
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
UNITED
STATES STEEL
CORPORATION
|
||
|
By:
|
/s/
▇. ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇. ▇. ▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President &
Treasurer
|
||
|
JPMORGAN
CHASE BANK, N.A.,
|
||
|
as
Collateral Agent
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Title:
Executive Director
|
||
EXHIBIT
A
PERFECTION
CERTIFICATE
The
undersigned is a duly authorized officer of United States Steel Corporation (the
“Lien
Grantor”). With reference to the Security Agreement dated as
of June 12, 2009 between the Lien Grantor and JPMorgan Chase Bank, N.A., as
Collateral Agent (terms defined therein being used herein as therein defined),
the undersigned certifies to the Collateral Agent and each other Secured Party
as follows:
Information
Required for Filings and Searches for Prior Filings.
1. Jurisdiction of
Organization. The Lien Grantor is a corporation organized
under the laws of Delaware.
2. Name. The exact
name of the Lien Grantor as it appears in its certificate of incorporation is as
follows: United States Steel Corporation.
3. Prior Names. (a)
The following constitute each other corporate (or other organizational) name
that the Lien Grantor has had within the past five years, together with the date
of the relevant change:
(b) Except
as hereinafter set forth, the Lien Grantor has not changed its structure as a
corporation.1
4. Filing Office. In
order to perfect the Transaction Liens granted by the Lien Grantor, a financing
statement on Form UCC-1, with the collateral described as set forth on Schedule
I hereto, should be on file in the office of ____________ in _________.2
1 Changes
in corporate structure include mergers and consolidations, as well as any change
in the Lien Grantor’s form of organization. If any such change has
occurred, include in Schedule II the information required by Part A of this
certificate as to each constituent party to a merger or consolidation and any
other predecessor organization.
2 Insert
Lien Grantor’s “location” determined as provided in UCC Section
9-307.
IN
WITNESS WHEREOF, I have hereunto set my hand this __ day of __________,
____.
Schedule
I
to
Perfection Certificate
DESCRIPTION
OF COLLATERAL
All
Inventory, Receivables, Contracts, Blocked Accounts and the Cash Collateral
Account and all books and records (including customer lists, credit files,
computer programs, printouts and other computer material and records) pertaining
to the foregoing, in each case whether now owned or hereafter acquired and
wherever located, and all Proceeds thereof, but excluding all Transferred
Receivables and Related Transferred Rights (as each such term is defined on
Exhibit A attached hereto).*
*Form
of Exhibit A to UCC-1 Financing Statements is attached hereto.
Exhibit
A to ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
▇▇▇▇▇▇:
▇▇▇▇▇▇
▇▇▇▇▇▇ Steel Corporation
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Secured
Party:
JPMorgan
Chase Bank, N.A.,
as
Collateral Agent
Loan
and Agency Services Group
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Capitalized
terms used in the description of collateral set forth on the face of the UCC-1
Financing Statement to which this Exhibit A pertains shall have the following
meanings:
“Accounts” has the meaning
specified in Section 9-102 of the UCC.
“Blocked Accounts” means any
lockbox, deposit, concentration or similar account of the Debtor which is or
becomes subject to a “Blocked Account Agreement” pursuant to the Security
Agreement.
“Cash Collateral Account” means
an account in the name and under the exclusive control of the Collateral Agent,
into which all amounts owned by the Debtor that are required to be deposited
pursuant to the Credit Agreement and related documents are deposited from time
to time.
“Chattel Paper” has the meaning
specified in Section 9-102 of the UCC.
“Collateral Agent” means
JPMorgan Chase Bank, N.A., in its capacity as collateral agent under the
Security Agreement and related documents, and its successors in such
capacity.
“Contracts” means all contracts
for the sale, lease, exchange or other disposition of Inventory, whether or not
performed and whether or not subject to termination upon a contingency or at the
option of any party thereto.
“Credit Agreement” means the
Amended and Restated Credit Agreement dated as of May 11, 2007, as amended and
restated on June 12, 2009, among the Debtor, the Lenders party thereto, the LC
Issuing Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent and Collateral Agent.
“Eligible Transferee” means (a)
a special-purpose company created and used solely for purposes of effecting a
Permitted Receivables Financing, whether or not a subsidiary of the Debtor, or
(b) any other person which is not a subsidiary of the Debtor.
“General Intangibles” has the
meaning specified in Section 9-102 of the UCC.
“Instrument” has the meaning
specified in Section 9-102 of the UCC.
“Inventory” has the meaning
specified in Section 9-102 of the UCC.
“Permitted Receivables
Financing” means any receivables securitization program or other type of
accounts receivable financing transaction by the Debtor or any of its
subsidiaries (including, without limitation, the Permitted Receivables Financing
of the Debtor that is in effect on the date hereof, as amended, supplemented,
modified or replaced from time to time, and as such receivables financing may be
renewed, extended, rolled over or replaced on substantially the same terms as
are in effect on the date hereof (the “Effective Date Receivables
Financing”).
“Proceeds” means all proceeds
of, and all other profits, products, rents or receipts, in whatever form,
arising from the collection, sale, lease, exchange, assignment, licensing or
other disposition of, or other realization upon, any Collateral, including all
claims of the Debtor against third parties for loss of, damage to or destruction
of, or for proceeds payable under, or unearned premiums with respect to,
policies of insurance in respect of, any Collateral, and any condemnation or
requisition payments with respect to any Collateral.
“Receivables” means, with
respect to the Debtor, all Accounts owned by it and all other rights, titles or
interests which, in accordance with generally accepted accounting principles in
the United States of America, would be included in receivables on its balance
sheet (including any such Accounts and/or rights, titles or interests that might
be characterized as Chattel Paper, Instruments or General Intangibles under the
UCC), in each case arising from the sale, lease, exchange or other disposition
of Inventory, and all of the Debtor’s rights to any goods, services or other
property related to any of the foregoing (including returned or repossessed
goods and unpaid seller’s rights of rescission, replevin, reclamation and rights
to stoppage in transit), and all collateral security and supporting obligations
of any kind given by any person with respect to any of the
foregoing.
“Related Transferred Rights”
means (a) rights to payment and collections in respect of Transferred
Receivables, (b) security interests or liens and property subject thereto
purporting to secure or guarantee payment of Transferred Receivables, (c)
guarantees, letters of credit, acceptances, insurance and other arrangements
from time to time supporting or securing payment of Transferred Receivables, (d)
all invoices, documents, books, records and other information with respect to
Transferred Receivables or the obligors thereon, (e) with respect to any
Transferred Receivables, the transferee’s interest in the product (including
returned product), the sale of which by such transferee gave rise to such
Transferred Receivables and (f) all proceeds of the items described in foregoing
clauses (a) through (e).
“Security Agreement” means the
Security Agreement dated as of June 12, 2009 between United States Steel and the
Collateral Agent.
“Transferred Receivables” means
any Receivables that have been sold, contributed or otherwise transferred by the
Debtor to an Eligible Transferee in connection with a Permitted Receivables
Financing that is not prohibited under the Credit Agreement (including, without
limitation, the Effective Date Receivables Financing heretofore
described).
“UCC” means the Uniform
Commercial Code as in effect from time to time in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or
the priority of any security interest in any collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than New York,
“UCC” means the Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.