EXHIBIT 4.2
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INTERCREDITOR AGREEMENT
Dated as of July 24, 2003
among
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent,
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands branch,
as Lender Administrative Agent,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender Collateral Agent,
AK STEEL RECEIVABLES LTD.,
as Transferor,
and
AK STEEL CORPORATION,
as Servicer and Originator, and as Company
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INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT
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INTERCREDITOR AGREEMENT, dated as of July 24, 2003 (as modified,
amended, restated or supplemented from time to time, this "Agreement"), by and
among PNC BANK, NATIONAL ASSOCIATION, in its capacity as Agent for the
Purchasers under the Purchase and Servicing Agreement (as hereinafter defined)
(the "Purchaser Agent"), CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands branch, in its capacity as Administrative Agent on behalf of the Lenders
(as defined below) (the "Lender Administrative Agent"), GENERAL ELECTRIC CAPITAL
CORPORATION, in its capacity as Collateral Agent on behalf of the Lenders (the
"Lender Collateral Agent", and together with the Lender Administrative Agent,
the "Lender Agents"), AK STEEL RECEIVABLES LTD. (the "Transferor"), and AK STEEL
CORPORATION ("AK Steel").
WITNESSETH:
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WHEREAS, AK Steel has agreed to sell, transfer and assign to the
Transferor, and the Transferor has agreed to purchase or otherwise acquire from
AK Steel, as Originator under the Receivables Purchase Agreement (in such
capacity, the "Originator"), all of the right, title and interest of the
Originator in the Receivables (as hereinafter defined) pursuant to an Amended
and Restated Receivables Purchase Agreement dated as of October 1, 1999 (as
amended, supplemented, modified or restated from time to time, the "Receivables
Purchase Agreement");
WHEREAS, the Transferor, as seller, AK Steel, in its capacity as
Servicer and Originator, AKSR Investments, Inc., in its capacity as Managing
Member of the Transferor, the Receivables Purchasers (as defined below), and the
Purchaser Agent, in its capacities as L/C Issuing Bank (as defined in the
Purchase and Servicing Agreement), as lender under Swing Line Advances (as
defined in the Purchase and Servicing Agreement), and as agent for the
Receivables Purchasers, are parties to an Amended and Restated Purchase and
Servicing Agreement dated as of October 1, 1999 (as amended, supplemented,
modified or restated from time to time, the "Purchase and Servicing Agreement"),
pursuant to which, among other things, (i) the Receivables Purchasers have
agreed, among other things, to purchase from the Transferor from time to time
Receivables (or interests therein) purchased by or contributed to the Transferor
pursuant to the Receivables Purchase Agreement and (ii) the Transferor has
granted a lien on the Receivables to the Purchaser Agent;
WHEREAS, the Receivables Purchase Agreement and the Purchase and
Servicing Agreement provide for the filing of UCC financing statements to
perfect the ownership and security interest of the parties thereto with respect
to the property covered thereby;
WHEREAS, AK Steel, the Lender Administrative Agent, the Lender
Collateral Agent, General Electric Capital Corporation, as Syndication Agent,
The CIT Group / Business Credit, Inc., Bank One, NA, and Congress Financial
Corporation, as Co-Documentation Agents, and the financial institutions from
time to time party thereto (collectively, the "Lenders") are parties to a Credit
Agreement dated as of July 24, 2003 (as amended, supplemented, modified or
restated from time to time, the "Credit Agreement"; capitalized terms used but
not defined herein have the respective meanings ascribed to such terms in the
Credit Agreement);
INTERCREDITOR AGREEMENT
WHEREAS, to secure AK Steel's obligations to the Lenders and Lender
Agents under the Credit Agreement and other Loan Documents (as hereinafter
defined), AK Steel has granted to the Lender Collateral Agent for the benefit of
the Lender Agents and the Lenders a lien over, among other things, certain
inventory, certain accounts receivable and certain general intangibles,
including the Unsold Receivables (as hereinafter defined), and all proceeds of
the foregoing; and
WHEREAS, the parties hereto wish to set forth certain agreements with
respect to the Receivables Assets (as hereinafter defined) and with respect to
the Lender Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, it is hereby agreed as
follows:
ARTICLE 1. DEFINITIONS.
1.01. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Amortization Date" has the meaning ascribed to such term in the
Purchase and Servicing Agreement.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Claim" means the Lender Claim or the Receivables Claim, as
applicable.
"Collections" means, for any Receivable as of any date, (i) all
amounts, whether in the form of wire transfer, cash, checks, drafts, or other
instruments, that are received (or deemed received) by the Transferor, by AK
Steel or the Purchaser Agent, or by the Originator, in each case in payment of
amounts owed in respect of such Receivable (including purchase price, finance
charges, interest and other charges), or applied to any amount owed by an
Obligor on account of such Receivable, including, without limitation, all
amounts received on account of such Receivable (including insurance payments and
net proceeds of the sale or disposition of repossessed goods or other collateral
or property of an Obligor on account of such Receivable) and all other fees and
charges related thereto, (ii) cash proceeds of Returned Goods with respect to
such Receivable and (iii) all amounts paid by AK Steel in respect of such
Receivable pursuant to the Receivables Purchase Agreement and/or the Purchase
and Servicing Agreement, in each case, whether received or paid on, before, or
after the delivery of a Receivables Termination Notice under Section 2.19 of
this Agreement.
"Contract" has the meaning ascribed to such term in the Purchase and
Servicing Agreement.
"Deposit Agreement" has the meaning ascribed to such term in the
Credit Agreement.
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"Disposition" means, with respect to any assets of AK Steel, any
liquidation of AK Steel or its assets, the establishment of any receivership for
AK Steel or its assets, a bankruptcy proceeding of AK Steel (either voluntary or
involuntary), the payment of any insurance, condemnation, confiscation, seizure
or other claim upon the condemnation, confiscation, seizure, loss or destruction
thereof, or damage to, or any other sale, transfer, assignment or other
disposition of such assets.
"Early Amortization Event" has the meaning ascribed to such term in
the Purchase and Servicing Agreement.
"Enforcement" means collectively or individually, for (a) any of the
Purchaser Agent or the Receivables Purchasers to (i) declare the Amortization
Dates under the Receivables Documents or (ii) commence the judicial or
nonjudicial enforcement of any of the default rights and remedies under the
Receivables Documents and (b) any of the Lender Agents or the Lenders during the
continuance of a Lender Event of Default (i) to demand payment in full of or
accelerate the indebtedness of AK Steel to the Lenders and Lender Agents or (ii)
to commence the judicial or nonjudicial enforcement of any of the default rights
and remedies under the Loan Documents.
"Enforcement Notice" means a written notice delivered in accordance
with Section 2.05, which notice shall (i) if delivered by the Purchaser Agent,
state that the Amortization Date has occurred, specify the nature of the Early
Amortization Event that has caused the declaration of such Amortization Date,
and state that an Enforcement Period has commenced and (ii) if delivered by the
Lender Administrative Agent, state that a Lender Event of Default has occurred
and that the payment in full of the Lender Claim has been demanded or the
indebtedness of AK Steel to the Lenders has been accelerated, specify the nature
of the Lender Event of Default that caused such demand and acceleration, and
state that an Enforcement Period has commenced.
"Enforcement Period" means the period of time following the receipt by
either the Lender Administrative Agent, on the one hand, or the Purchaser Agent,
on the other, of an Enforcement Notice delivered by the other until the earliest
of the following: (i) the Receivables Claim has been satisfied in full, none of
the Receivables Purchasers have any further obligations under the Receivables
Documents and the Receivables Documents have been terminated; (ii) the Lender
Claim has been satisfied in full, the Lenders have no further obligations under
the Loan Documents and the Loan Documents have been terminated; and (iii) the
parties hereto agree in writing to terminate the Enforcement Period.
"Lenders" shall mean the Lenders under the Credit Agreement, the
Administrative Agent, the Collateral Agent, the Syndication Agent and the Lead
Arranger (each as defined in the Credit Agreement).
"Lender Claim" means all of the indebtedness, obligations and other
liabilities of AK Steel and its subsidiaries now or hereafter arising under, or
in connection with, the Loan Documents including, but not limited to, all sums
now or hereafter lent or advanced to or for the benefit of AK Steel, all
reimbursement obligations of AK Steel with respect to letters of credit, any
interest thereon (including, without limitation, interest accruing after the
commencement of a
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bankruptcy, insolvency or similar proceeding relating to AK Steel, whether or
not such interest is an allowed claim in any such proceeding), any reimbursement
obligations, fees or expenses due thereunder, any costs of collection or
enforcement, and all other "Obligations" under and as defined in the Credit
Agreement.
"Lender Collateral" means all property and interests in property, now
owned or hereafter acquired or created, of AK Steel in or upon which a Lender
Interest is granted or purported to be granted by AK Steel to the Lenders or any
Lender Agent under any of the Loan Documents, and includes, without limitation,
all of the interests in property described in the first proviso of Section 2.01
hereof.
"Lender Event of Default" has the meaning ascribed to the term "Event
of Default" in the Credit Agreement.
"Lender Interest" means, with respect to any property or interest in
property, now owned or hereafter acquired or created, of AK Steel, any lien,
claim, encumbrance, security interest or other interest of any Lender Agent or
the Lenders in such property or interests in property.
"Loan Documents" has the meaning ascribed to such term in the Credit
Agreement.
"Obligor" has the meaning ascribed to such term in the Purchase and
Servicing Agreement.
"Outstanding Balance" has the meaning ascribed to such term in the
Purchase and Servicing Agreement.
"Person" means any individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture, governmental body or other entity or
organization.
"Proceeds" has the meaning ascribed to such term in the UCC.
"Purchased Receivables" means now owned or hereafter existing
Receivables sold, purported to be sold, transferred or contributed or purported
to be transferred or contributed by the Originator to the Transferor under the
Receivables Purchase Agreement, but does not include any Receivable (or interest
therein or Receivables Assets related thereto) that is sold, purported to be
sold, transferred or contributed, or purported to be transferred or contributed,
by the Originator to the Transferor after the effective date of any termination
of transfers of Receivables pursuant to Section 2.19 of this Agreement, or after
a payment in full in cash of the Receivables Claim and termination of the
Receivables Documents.
"Receivable" means:
(a) an Armco Receivable (as defined in the Purchase and Servicing
Agreement);
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(b) indebtedness and other obligations of, or the right of
the Transferor or the Originator to payment from or on behalf of,
an Obligor (whether constituting an account, chattel paper,
document, instrument or general intangible) arising from the
provision of merchandise, goods or services to such Obligor,
including all monies due or to become due with respect thereto,
including the right to payment of any interest or finance charges
and other obligations of such Obligor with respect thereto;
(c) all security interests or liens and property subject
thereto from time to time securing or purporting to secure any
such indebtedness by such Obligor;
(d) all guaranties, indemnities and warranties, insurance
policies, financing statements and other agreements or
arrangements of whatever character from time to time supporting
or securing payment of any such indebtedness;
(e) all Collections with respect to any of the foregoing;
(f) all Records with respect to any of the foregoing; and
(g) all Proceeds with respect to any of the foregoing.
"Receivables Assets" means (i) the Purchased Receivables, (ii) the
Collections related to such Purchased Receivables, (iii) Returned Goods relating
to such Purchased Receivables, (iv) with respect to such Purchased Receivables,
all rights, interest and claims of the Transferor under the Receivables Purchase
Agreement in respect of such Purchased Receivables, (v) each deposit or other
bank account to which any Collections of such Purchased Receivables are
deposited (but in no event shall Receivables Assets include any Collections or
other monies deposited in such accounts which are not Collections related to
Purchased Receivables) and (vi) all Proceeds with respect to any of the
foregoing.
"Receivables Claim" means all indebtedness, obligations and other
liabilities of the Originator to the Transferor and of the Originator and the
Transferor to the Receivables Purchasers and/or the Purchaser Agent now or
hereafter arising under, or in connection with, the Receivables Documents,
including, but not limited to, all sums or increases now or hereafter advanced
or made to or for the benefit of the Transferor thereunder as the purchase price
paid for Purchased Receivables (or interests therein) or as swing line advances
or otherwise under the Purchase and Servicing Agreement, all reimbursement
obligations of the Transferor and the Originator with respect to letters of
credit, any yield thereon (including, without limitation, yield accruing after
the commencement of a bankruptcy, insolvency or similar proceeding relating to
AK Steel or the Transferor, whether or not such yield is an allowed claim in any
such proceeding), any repayment or reimbursement obligations, fees or expenses
due thereunder, and any costs of collection or enforcement.
"Receivables Documents" means the Receivables Purchase Agreement, the
Purchase and Servicing Agreement and any other agreements, instruments or
documents (i) executed by the Originator and delivered to the Transferor, the
Purchaser Agent or the Receivables Purchasers or (ii) executed by the Transferor
and delivered to the Purchaser Agent or the Receivables Purchasers.
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"Receivables Interest" means, with respect to any property or
interests in property, now owned or hereafter acquired or created, of the
Originator (regardless of whether sold or contributed by the Originator to the
Transferor), any lien, claim, encumbrance, security interest or other interest
of the Transferor and/or the Purchaser Agent or any Receivables Purchaser in
such property or interests in property, subject to the limitations described in
Section 2.02.
"Receivables Purchaser" means each Person from time to time party to
the Purchase and Servicing Agreement in the capacity of a "Purchaser Party" (as
defined in the Purchase and Servicing Agreement).
"Receivables Termination Notice" has the meaning set forth in Section
2.19.
"Records" means all Contracts and other documents, books, records and
other information (including computer programs, tapes, disks, data processing
software and related property and rights) maintained with respect to
Receivables, the Obligors thereunder and the Receivables Assets.
"Returned Goods" means all right, title and interest of the
Originator, the Transferor, the Purchaser Agent or any Receivables Purchaser, as
applicable, in and to returned, repossessed or foreclosed goods and/or
merchandise the sale of which gave rise to a Receivable.
"Servicer" has the meaning ascribed to such term in the Purchase and
Servicing Agreement.
"Subordinated Note" has the meaning ascribed to such term in Section
2.5(b) of the Receivables Purchase Agreement.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"Unsold Receivables" means any Receivables other than Purchased
Receivables.
1.02. References to Terms Defined in the Receivables Documents and
the Loan Documents.
Whenever in Section 1.01 a term is defined by reference to the meaning
ascribed to such term in any of the Receivables Documents or in any of the Loan
Documents, then, unless otherwise specified herein, such term shall have the
meaning ascribed to such term in the Receivables Documents or Loan Documents,
respectively, as in existence on the date hereof, without giving effect to any
amendments of such term (or any amendment of terms used in such term) as may
hereafter be agreed to by the parties to such documents, unless such amendments
have been consented to in writing by all of the parties hereto.
ARTICLE 2. INTERCREDITOR PROVISIONS.
2.01. Priorities with Respect to Receivables Assets. Notwithstanding
any provision of the UCC, any applicable law or decision or any of the Loan
Documents or the
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Receivables Documents, each Lender Agent (for itself and on behalf of each
Lender) hereby agrees that, upon the sale or other transfer or any purported
sale or transfer (including, without limitation, by way of capital contribution)
of any Receivable (or interest therein) by the Originator to the Transferor
pursuant to the Receivables Purchase Agreement, any Lender Interest of the
Lenders or such Lender Agent in such Receivables and all Receivables Assets with
respect thereto shall automatically and without further action cease and be
forever released and discharged and such Lender Agent and the Lenders shall have
no Lender Interest therein; provided, however, that nothing in this Section 2.01
shall be deemed to constitute a release by any Lender Agent or any of the
Lenders of: (i) any Lender Interest in the proceeds received by AK Steel from
the Transferor for the sale of Receivables pursuant to the Receivables Purchase
Agreement (including, without limitation, cash payments made by the Transferor
and the Subordinated Note (as the outstanding principal balance under the
Subordinated Note may increase or decrease from time to time)); (ii) any Lender
Interest or right of any Lender Agent or any of the Lenders in any interests
that AK Steel may acquire from the Transferor or the Purchaser Agent or that AK
Steel has in Returned Goods; or (iii) any Lender Interest or right that any of
the Lenders or any Lender Agent has in any Unsold Receivables and the proceeds
thereof, or (iv) any Lender Interest or right that any Lender Agent or any of
the Lenders has in any deposit or other bank account under any Deposit
Agreement; provided further, however, that any Lender Interest in such Returned
Goods shall be junior and subject and subordinate to the Receivables Interest
therein unless and until each of AK Steel and the Transferor shall have made all
payments or adjustments required to be made by it under the Receivables
Documents on account of the reduction of the Outstanding Balance of any
Purchased Receivable related to such Returned Goods. If any goods or
merchandise, the sale of which has given rise to a Purchased Receivable, are
returned to or repossessed by AK Steel, on behalf of the Transferor, then, upon
payment by AK Steel or the Transferor of all adjustments required on account
thereof under the Purchase and Servicing Agreement, the Receivables Interest in
such Returned Goods shall automatically and without further action cease to
exist and be released and extinguished and such Returned Goods shall thereafter
not constitute Receivables Assets for purposes of this Agreement unless and
until such Returned Goods have been resold so as to give rise to a Receivable
and such Receivable has been sold, contributed, or otherwise transferred to the
Transferor.
2.02. Respective Interests in Receivables Assets and Lender
Collateral.
(a) Except for all rights to access to and use of Records
granted to the Transferor, the Purchaser Agent, and the
Receivables Purchasers pursuant to the Receivables Documents and
except for the Receivables Interest of the Purchaser Agent (for
the benefit of the Receivables Purchasers) in Returned Goods,
which interest is senior in all respects to any Lender Interest
therein subject to Section 2.01, each of the Transferor and the
Purchaser Agent (for itself and on behalf of each Receivables
Purchaser) agrees that it does not have and shall not have any
Receivables Interest in the Lender Collateral, and that it
consents to the creation, attachment, perfection, and continued
existence of the Lender Interest in the Lender Collateral.
(b) Except for rights in Returned Goods granted to the
Lender Collateral Agent and the Lenders pursuant to the Loan
Documents, which Lender Interest is
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junior and subordinate to any Receivables Interest therein, each
Lender Agent (for itself and on behalf of each Lender) agrees
that neither such Lender Agent nor the Lenders have, nor shall
any of them have, any Lender Interest in the Receivables Assets,
and that it consents to the creation, attachment, perfection, and
continued existence of the Receivables Interest in the
Receivables Assets.
2.03. Distribution of Proceeds. At all times, all proceeds of Lender
Collateral and Receivables Assets shall be distributed in accordance with the
following procedure:
(a) (i) All proceeds of the Lender Collateral shall be paid
to the Lender Collateral Agent for application on the Lender
Claim and other obligations and liabilities owing under the
Credit Agreement and other Loan Documents until the Lender Claim
and such other obligations and liabilities have been paid and
satisfied in full in cash and the Credit Agreement is terminated;
and (ii) any remaining proceeds shall be paid to AK Steel or as
otherwise required by applicable law, and the Transferor and the
Purchaser Agent (for itself and on behalf of each Receivables
Purchaser) agrees that none of the Transferor, the Purchaser
Agent or the Receivables Purchasers have, nor shall they have,
any Receivables Interest in such remaining proceeds. The
foregoing shall not, however, impair any claim or any right or
remedy that the Transferor, the Purchaser Agent or the
Receivables Purchasers may have against AK Steel under the
Receivables Documents or otherwise.
(b) (i) All proceeds of the Receivables Assets shall be
paid to the Purchaser Agent for application against the
Receivables Claim and for application in accordance with the
Receivables Documents until the Receivables Claim has been paid
and satisfied in full in cash and the Receivables Documents have
terminated; and (ii) subject to Section 2.01 hereof, any
remaining proceeds shall be paid to the Transferor or as
otherwise required by applicable law. Each Lender Agent (for
itself and on behalf of each Lender) agrees that, except as set
forth in Section 2.01 hereof, neither such Lender Agent nor the
Lenders have, nor shall they have, any Lender Interest in such
remaining proceeds. The foregoing shall not, however, impair any
claim or any right or remedy that any Lender Agent or the Lenders
may have against AK Steel under the Loan Documents or otherwise.
(c) In the event that any of the Transferor, the Purchaser
Agent or any Receivables Purchaser now or hereafter obtains
possession of any Lender Collateral, it shall immediately deliver
to the Lender Collateral Agent such Lender Collateral (and until
delivered to the Lender Collateral Agent such Lender Collateral
shall be held for the Lender Collateral Agent); provided,
however, that, prior to the earlier of the commencement of an
Enforcement Period or the delivery of a Receivables Termination
Notice, AK Steel, in its capacity as Originator under the
Receivables Purchase Agreement or as Servicer under the Purchase
and Servicing Agreement, may make payments to the Transferor or
the Purchaser Agent of yield, interest, and other amounts in
respect of the Receivables Claim, in each case as required to be
paid by it under the Receivables Purchase Agreement or the
Purchase and Servicing Agreement from amounts held
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in trust pursuant to Section 5.07 or 5.09 of the Purchase and
Servicing Agreement or otherwise from its cash on hand, and the
Transferor, the Purchaser Agent, and each Receivables Purchaser
may retain such payments to the extent permitted under the
Purchase and Servicing Agreement. Subject to the foregoing
proviso, each of the Transferor and the Purchaser Agent (for
itself and on behalf of each Receivables Purchaser) further
agrees to turn over immediately the proceeds of any Disposition
of Lender Collateral that it (or any Receivables Purchaser) might
receive while any Lender Claim, any other obligations or
liabilities under the Credit Agreement, any Loan Document or any
commitment to make financial accommodations thereunder remain
outstanding, regardless of whether any Lender Agent has a
perfected and enforceable lien in the assets of AK Steel from
which the proceeds of any such Disposition have been received.
(d) In the event that AK Steel, any Lender or any Lender
Agent now or hereafter obtains possession of any Receivables
Assets, it shall immediately deliver to the Purchaser Agent such
Receivables Assets (and until delivered to the Purchaser Agent
such Receivables Assets shall be held for the Purchaser Agent);
provided, however, that, prior to the earlier of the commencement
of an Enforcement Period or the delivery of a Receivables
Termination Notice, the Transferor, in its capacity as Buyer
under the Receivables Purchase Agreement, may make payments to AK
Steel of the purchase price of Purchased Receivables as required
under the Receivables Purchase Agreement from amounts received
from the Receivables Purchasers pursuant to Section 2.06 of the
Purchase and Servicing Agreement or reinvestments under Section
5.07 of the Purchase and Servicing Agreement or otherwise from
its cash on hand, and AK Steel, each Lender, and each Lender
Agent may retain such payments to the extent permitted under the
Credit Agreement. Subject to the foregoing proviso, AK Steel and
each Lender Agent (for itself and on behalf of each Lender)
further agrees to turn over immediately the proceeds of any
Disposition of Receivables Assets to the Purchaser Agent that it
(or any Lender) might receive while any Receivables Claim, any
other obligations or liabilities under the Receivables Documents
or any commitment to make financial accommodations thereunder
remain outstanding, regardless of whether the Purchaser Agent has
a perfected and enforceable lien in the assets from which the
proceeds of such Disposition have been received. From and after
the receipt by the Lender Collateral Agent of written notice from
the Purchaser Agent that the Receivables Documents have been
terminated and all monetary obligations under the Receivables
Documents have been satisfied in full, the Lender Agents shall
make all payments and deliveries required under this Section
2.03(d) to the Transferor instead of the Purchaser Agent.
(e) AK Steel agrees to keep all Returned Goods segregated
from Inventory. If any Inventory of AK Steel has been commingled
with Returned Goods in which the Receivables Interest continues
as provided in Section 2.01 above (such Returned Goods and
commingled Inventory, to the extent consisting of the same type
and quality as such Returned Goods, collectively, the "Commingled
Property"), and any Lender Agent or any Lender receives any
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proceeds on account of such Commingled Property (whether by
reason of sale or by reason of insurance payments on account
thereof) prior to release of such Receivables Interest, then: (i)
all proceeds of such Commingled Property shall be paid to the
Lender Collateral Agent, and the Lender Collateral Agent shall,
immediately upon receipt of such proceeds, pay to the Purchaser
Agent for application against the Receivables Claim a share of
such proceeds equal to the dollar amount of such proceeds
multiplied by a fraction, the numerator of which equals the book
value of such commingled Returned Goods and the denominator of
which equals the book value of all of such Commingled Property;
and (ii) any remaining proceeds shall be paid to the Lender
Administrative Agent for application against the Lender Claim.
(f) AK Steel agrees to keep all Commingled Property
segregated from other Inventory and Returned Goods. AK Steel
further agrees that, if at any time there exists more than one
pool of Commingled Property, AK Steel shall keep each pool of
Commingled Property segregated from each other pool of Commingled
Property. Any payments made pursuant to Section 2.03(e) shall be
made on a pool-by-pool basis. Nothing in this Section 2.03(f)
shall excuse AK Steel from complying with its obligations under
Section 2.03(e).
2.04. Unsold Receivables.
(a) The Transferor and the Purchaser Agent (for itself and
on behalf of each Receivables Purchaser) hereby acknowledge that
the Lender Collateral Agent on behalf of the Lenders and itself
shall be entitled to Collections of Unsold Receivables.
(b) Each of the parties hereto hereby agrees that all
Collections received on account of Purchased Receivables shall be
paid or delivered to the Purchaser Agent for application in
accordance with Section 2.03(b) and all Collections received on
account of Unsold Receivables shall be paid or delivered to the
Lender Collateral Agent for application in accordance with
Section 2.03(a).
(c) Each Lender Agent agrees that it shall not exercise any
rights it may have under the Loan Documents to send any notices
to Obligors informing them of the Lenders' interest (if any) in
the Receivables or directing such Obligors to make payments in
any particular manner of any amounts due under the Receivables
prior to the later of payment in full of the Receivables Claim
and the termination of the Receivables Documents, except that
from and after the earlier of (i) the date that is 75 days after
the effective date of any termination of transfers of Receivables
pursuant to Section 2.19 of this Agreement and (ii) the first
date on which the Receivables Claim is less than $5,000,000, the
Lender Collateral Agent may inform any Obligors of Unsold
Receivables that such Unsold Receivables have been assigned to
the Lender Collateral Agent and direct them as to where and how
to make payments on account of Unsold Receivables.
-10- INTERCREDITOR AGREEMENT
(d) AK Steel shall maintain a system of accounting that
enables it to determine, for all Collections, the identity of the
Receivables to which such Collections relate, including, without
limitation, whether such Receivables are Purchased Receivables or
Unsold Receivables. All of the parties hereto agree to cooperate
with one another in good faith in making such determinations. In
the event that Collections are received after the effective date
of any termination of transfers of Receivables pursuant to
Section 2.19 of this Agreement and the Receivable to which such
Collections relate cannot be determined with reasonable certainty
by the parties hereto after commercially reasonable inquiry, such
Collections shall, for purposes of this Agreement, be applied
first to the Receivables owed by such Obligor that have not been
written off in accordance with GAAP in chronological order
beginning with the oldest such Receivable, and then to the
Receivables owed by such Obligor that have been written off in
accordance with GAAP in chronological order beginning with the
oldest such Receivable. In the event that Collections are
received after the effective date of any termination of transfers
of Receivables pursuant to Section 2.19 of this Agreement and the
Obligor from whom such Collections were received cannot be
determined with reasonable certainty by the parties hereto after
commercially reasonable inquiry, such Collections shall, for
purposes of this Agreement, be applied (to the extent that the
parties hereto are entitled under applicable law to retain such
Collections) first to the Receivables Claim, second to the Lender
Claim, and third to the Transferor. Once identified, all proceeds
of Unsold Receivables shall be transferred from the Blocked
Accounts to such other deposit accounts as the Lender Collateral
Agent may specify from time to time.
2.05. Enforcement Actions. Each of the Lender Administrative Agent
and the Purchaser Agent agrees to use reasonable efforts to give an Enforcement
Notice to the other prior to commencement of Enforcement (but failure to do so
shall not prevent such Person from commencing Enforcement or affect its rights
hereunder nor create any cause of action or liability against such Person).
Subject to the foregoing, each of the parties hereto agrees that during an
Enforcement Period:
(a) Subject to any applicable restrictions in the
Receivables Documents, the Purchaser Agent may at its option and
without the prior consent of the other parties hereto, take any
action to (i) accelerate payment of the Receivables Claim or any
other obligations and liabilities under any of the Receivables
Documents and (ii) liquidate the Receivables Assets or foreclose
or realize upon or enforce any of its rights with respect to the
Receivables Assets; provided, however, that the Purchaser Agent
shall not take any action to foreclose or realize upon or to
enforce any rights it may have with respect to any Receivables
Assets constituting Returned Goods that have been commingled with
the Lender Collateral without the prior written consent of the
Lender Collateral Agent.
(b) Subject to any applicable restrictions in the Loan
Documents, the Lender Administrative Agent, the Lender Collateral
Agent or the Lenders may, at their option and without the prior
consent of the other parties hereto, take any action to
accelerate payment of the Lender Claim or any other obligation or
-11- INTERCREDITOR AGREEMENT
liability arising under any of the Loan Documents, foreclose or
realize upon or enforce any of their rights with respect to the
Lender Collateral or other collateral security, including, except
as otherwise provided in Section 2.03(e), with respect to any
Receivables Assets constituting Returned Goods that have been
commingled with the Lender Collateral, and take any other actions
as they deem appropriate; provided, however, that the Lender
Agents shall not otherwise take any action to foreclose or
realize upon or to enforce any rights that either of them may
have with respect to uncommingled Returned Goods without the
Purchaser Agent's prior written consent unless the Lender
Collateral Agent determines pursuant to Section 2.20 that the
Receivables Claim or any other obligation or liability arising
under any of the Receivables Documents shall have been first paid
and satisfied in full and the Receivables Documents have
terminated.
(c) If Returned Goods are commingled with Inventory, the
parties agree to cooperate in the disposition of Commingled
Property and the application of the proceeds thereof as provided
in Section 2.03(e).
2.06. Access to Records. Subject to any applicable restrictions in
the Receivables Documents (but without limiting any rights under the Receivables
Documents), each of the Receivables Purchasers and the Purchaser Agent may enter
one or more premises of AK Steel, the Transferor or their respective affiliates,
whether leased or owned, at any time during reasonable business hours, without
force or process of law and without obligation to pay rent or compensation to AK
Steel, the Transferor, such affiliates, the Lenders or any Lender Agent, whether
before, during or after an Enforcement Period, and may have access to and use of
all Records located thereon and may have access to and use of any other property
to which such access and use are granted under the Receivables Documents, in
each case provided that such use is for the purpose of enforcing or exercising
the Purchaser Agent's and/or the Receivables Purchasers' rights with respect to
the Receivables Assets.
2.07. Accountings. AK Steel agrees to render statements to the
Purchaser Agent upon reasonable request, which statements shall identify in
reasonable detail the Unsold Receivables. The Lender Administrative Agent agrees
to inform the Purchaser Agent, upon reasonable request, as to the Lender
Administrative Agent's then current estimate of the outstanding amount of the
Lender Claim, giving effect to the application of proceeds of Lender Collateral
as hereinbefore provided. AK Steel agrees to render statements to the Lender
Administrative Agent and the Lender Collateral Agent upon the reasonable request
of any Lender Agent, which statements shall identify in reasonable detail the
Purchased Receivables and shall render an account of the Receivables Claim,
giving effect to the application of proceeds of Receivables Assets and Lender
Collateral as hereinbefore provided; provided that the Purchaser Agent agrees to
inform the Lender Administrative Agent and the Lender Collateral Agent as to the
Purchaser Agent's then current estimate of the outstanding amount of the
Receivables Claim upon the reasonable request of any Lender Agent from and after
the date (if any) on which AK Steel has ceased to be the Servicer under the
Purchase and Servicing Agreement. AK Steel and the Transferor hereby authorize
the Lender Collateral Agent, the Lender Administrative Agent and the Purchaser
Agent to provide the statements described in this section. None of the Lender
Collateral Agent, the Lender Administrative Agent, AK Steel or the Purchaser
Agent shall bear any liability if their respective accounts are incorrect.
-12- INTERCREDITOR AGREEMENT
2.08. Agency for Perfection. The Purchaser Agent and the Lender
Collateral Agent hereby appoint each other as agent for purposes of perfecting
by possession their respective security interests and ownership interests and
liens on the Lender Collateral and Receivables Assets, as applicable, described
hereunder. In the event that the Purchaser Agent obtains possession of any item
that it believes with reasonable certainty to be part of the Lender Collateral,
the Purchaser Agent shall notify the Lender Collateral Agent of such fact, shall
hold such Lender Collateral and shall deliver such Lender Collateral to the
Lender Collateral Agent upon request. In the event that any Lender Agent obtains
possession of any item that it believes with reasonable certainty to be part of
the Receivables Assets, such Lender Agent shall notify the Purchaser Agent of
such fact, shall hold such Receivables Assets and shall deliver such Receivables
Assets to the Purchaser Agent upon request. The Purchaser Agent shall notify the
Lender Administrative Agent and the Lender Collateral Agent with reasonable
promptness whenever the Receivables Documents are amended to expand the scope of
the property owned by or owed to the Receivables Purchasers thereunder;
provided, however, that no such amendment shall be deemed to affect the meaning
of terms defined in this Agreement unless the parties hereto consent in writing
in accordance with Section 1.02 of this Agreement. The Lender Administrative
Agent shall notify the Purchaser Agent with reasonable promptness whenever the
Loan Documents are amended to expand the scope of the collateral securing the
obligations thereunder; provided, however, that no such amendment shall be
deemed to affect the meaning of terms defined in this Agreement unless the
parties hereto consent in writing in accordance with Section 1.02 of this
Agreement. No party to this Agreement shall be liable under this Agreement to
any other party to this Agreement by reason of its having, in good faith,
relinquished possession of Lender Collateral or Receivables Assets.
2.09. UCC Notices. In the event that any party hereto shall be
required by the UCC or any other applicable law to give notice to the other of
intended disposition of Receivables Assets or Lender Collateral, respectively,
such notice shall be given in accordance with Section 3.01 hereof and ten (10)
days' notice shall be deemed to be commercially reasonable.
2.10. Independent Credit Investigations. Neither the Receivables
Purchasers, the Purchaser Agent, any Lender Agent nor the Lenders, nor any of
their respective directors, officers, agents or employees, shall be responsible
to the other or to any other Person for the solvency, financial condition or
ability of AK Steel or the Transferor to repay the Receivables Claim or the
Lender Claim, or for the worth of the Receivables Assets or the Lender
Collateral, or for statements of AK Steel or the Transferor, oral or written, or
for the validity, sufficiency or enforceability of the Receivables Claim, the
Lender Claim, the Receivables Documents, the Loan Documents, the Purchaser
Agent's interest in the Receivables Assets or the Lenders' or any Lender Agent's
interest in the Lender Collateral. The Lenders and the Receivables Purchasers
have entered into their respective agreements with AK Steel or the Transferor,
as applicable, based upon their own independent investigations. None of the
Lender Agents, the Lenders, the Purchaser Agent or the Receivables Purchasers
makes any warranty or representation to the other nor does it rely upon any
representation of the other with respect to matters identified or referred to in
this Section 2.10.
2.11. Limitation on Liability of Parties to Each Other. Except with
respect to liability for breach of express obligations under this Agreement, no
party shall have any liability
-13- INTERCREDITOR AGREEMENT
to any other party except for liability arising from the gross negligence or
willful misconduct of such party or its representatives as determined by a court
of competent jurisdiction. No fiduciary duties on the part of the Purchaser
Agent or any Lender Agent are intended to be created under this Agreement,
notwithstanding the use of the terms "agent" or "agency." Each of the Purchaser
Agent, on the one hand, and the Lender Agents, on the other hand, are
independent contractors with respect to the other and neither of them shall be
regarded as the agent, trustee or other fiduciary of the other by virtue of this
Agreement. The obligations and rights under this Agreement of each of the
Purchaser Agent, the Lender Administrative Agent and the Lender Collateral Agent
apply to each such party solely in its capacity as Purchaser Agent, Lender
Administrative Agent or Lender Collateral Agent, and not in any other capacity.
2.12. Amendments to Loan Arrangements or to this Agreement. Each
party hereto shall, upon reasonable request of any other party hereto, provide
copies of all modifications or amendments and copies of all other documentation
relevant to the Receivables Assets or the Lender Collateral. All modifications
or amendments of this Agreement must be in writing and duly executed by an
authorized officer of each party hereto to be binding and enforceable.
2.13. Marshalling of Assets. Nothing in this Agreement will be deemed
to require either the Purchaser Agent or the Lender Agent (i) to proceed against
certain property securing the Lender Claim (or any other obligation or liability
under the Credit Agreement or any other Loan Document) or the Receivables Claim
(or any other obligation or liability under any other Receivables Document), as
applicable, prior to proceeding against other property securing such Claim or
obligations or liabilities or against certain persons guaranteeing any such
obligations or (ii) to marshal the Lender Collateral (or any other collateral)
or the Receivables Assets (as applicable) upon the enforcement of the Lender
Agent's or the Purchaser Agent's remedies under the Loan Documents or
Receivables Documents, as applicable.
2.14. Relative Rights.
(a) The relative rights of the Lenders, each as against the
other, shall be determined by agreement among such parties in
accordance with the terms of the Loan Documents. The Purchaser
Agent and the Receivables Purchasers shall be entitled to rely on
the power and authority of each Lender Agent to act on behalf of
all of the Lenders to the extent that the provisions of this
Agreement have such Lender Agent so act.
(b) Each Lender Agent and the Lenders shall be entitled to
rely on the power and authority of the Purchaser Agent to act on
behalf of the Receivables Purchasers to the extent that the
provisions of this Agreement have the Purchaser Agent so act.
2.15. Effect Upon Loan Documents and Receivables Documents. By
executing this Agreement, AK Steel and the Transferor agree to be bound by the
provisions hereof (i) as they relate to the relative rights of the Lenders and
each Lender Agent with respect to the property of AK Steel, and (ii) as they
relate to the relative rights of AK Steel, the Transferor, the Receivables
Purchasers and/or the Purchaser Agent as creditors of (or purchasers from) AK
Steel
-14- INTERCREDITOR AGREEMENT
or the Transferor, as the case may be. AK Steel acknowledges that the provisions
of this Agreement shall not give it any substantive rights as against any Lender
Agent or the Lenders and that nothing in this Agreement shall (except as
expressly provided herein) amend, modify, change or supersede the terms of the
Loan Documents as among AK Steel, the Lender Agents and the Lenders. The
Transferor and AK Steel acknowledge that the provisions of this Agreement shall
not give the Transferor or AK Steel any substantive rights as against the
Purchaser Agent or the Receivables Purchasers and that nothing in this Agreement
shall (except as expressly provided herein) amend, modify, change or supersede
the terms of the Receivables Documents as among the Transferor, AK Steel, the
Purchaser Agent and the Receivables Purchasers. AK Steel and the Transferor
further acknowledge that the provisions of this Agreement shall not give either
such party any substantive rights as against the other and that nothing in this
Agreement shall amend, modify, change or supersede the terms of the Receivables
Documents as between AK Steel and the Transferor. Notwithstanding the foregoing,
each of the Purchaser Agent (for itself and on behalf of each Receivables
Purchaser), and each Lender Agent (for itself and on behalf of each Lender)
agrees, that, as between themselves, to the extent that the terms and provisions
of the other Loan Documents or the Receivables Documents are inconsistent with
the terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
2.16. Nature of the Lender Claim and Modification of Loan Documents.
Each of the Transferor and the Purchaser Agent (for itself and on behalf of each
Receivables Purchaser) acknowledge that the Lender Claim and other obligations
and liabilities owing under the Loan Documents are, in part, revolving in nature
and that the amount of such revolving indebtedness that may be outstanding at
any time or from time to time may be increased or reduced and subsequently
reborrowed. The terms of the Loan Documents may be modified, extended or amended
from time to time, and the amount thereof may be increased or reduced, all
without notice to or consent by any of the Transferor, the Purchaser Agent or
the Receivables Purchasers and without affecting the provisions of this
Agreement; provided that nothing in this Section 2.16 (including, without
limitation, the next succeeding sentence) shall be construed to relieve AK Steel
or the Transferor of its obligation to comply with the covenants under the
Purchase and Servicing Agreement and the Receivables Purchase Agreement. Without
in any way limiting the foregoing, each of the Transferor and the Purchaser
Agent (for itself and on behalf of each Receivables Purchaser) hereby agrees
that the maximum amount of the Lender Claim and other obligations and
liabilities owing under the Loan Documents may be increased at any time and from
time to time to any amount.
2.17. Nature of the Receivables Claim and Modification of Receivables
Documents. AK Steel and each Lender Agent (for itself and on behalf of each
Lender) acknowledges that the Receivables Claim and other obligations and
liabilities owing under the Receivables Documents are, in part, revolving in
nature and that the amount of such revolving obligations that may be outstanding
at any time or from time to time may be increased or reduced and subsequently
reincurred. The terms of the Receivables Documents may be modified, extended or
amended from time to time, and the amount thereof may be increased or reduced,
all without notice to or consent by any of AK Steel, the Lenders or any Lender
Agent and without affecting the provisions of this Agreement; provided that
nothing in this Section 2.17 (including, without limitation, the next succeeding
sentence) shall be construed to relieve AK Steel of its obligation to comply
with the covenants under the Credit Agreement.
-15- INTERCREDITOR AGREEMENT
Without in any way limiting the foregoing, each of AK Steel and each Lender
Agent (for itself and on behalf of each Lender) hereby agrees that the maximum
amount of the Receivables Claim and other obligations and liabilities owing
under the Receivables Documents and the amount of Receivables that may be
purchased or otherwise financed pursuant to the Receivables Documents may, in
each case, be increased at any time and from time to time to any amount.
2.18. Further Assurances. Each of the parties agrees to take such
actions as may be reasonably requested by any other party, whether before,
during or after an Enforcement Period, in order to effect the rules of
distribution and allocation set forth above in this Article 2 and otherwise to
effectuate the agreements made in this Article.
2.19. Termination and Cessation of Transfer of Receivables. After the
occurrence and during the continuance of a Lender Event of Default and upon
written notice thereof by the Lender Administrative Agent or Requisite Lenders
to the Purchaser Agent and AK Steel (a "Receivables Termination Notice"), AK
Steel shall terminate and cease all transfers of Receivables to the Transferor
(all such termination and cessation to be effective at the close of business on
the Business Day after such Receivables Termination Notice is effective in
accordance with Section 3.01 unless on the date of such notice the Purchased
Interest (as defined in the Purchase and Servicing Agreement, but without giving
effect to the proviso in the definition of "Floating Allocation Percentage"
therein) exceeds 100%, in which case all such termination and cessation shall be
effective at the close of business three Business Days after the Receivables
Termination Notice is effective in accordance with Section 3.01); provided that
in the case of a Lender Event of Default resulting from the occurrence of an
Insolvency Event (as defined in the Purchase and Servicing Agreement) relating
to AK Steel, all transfers of Receivables immediately and automatically shall
terminate and cease without notice of any kind (except to the extent otherwise
required pursuant to an order entered by the bankruptcy court having
jurisdiction over such proceeding).
Except as set forth in the immediately preceding proviso, nothing
contained in this Section shall affect the rights of the Transferor, Purchaser
Agent or Receivables Purchasers with respect to Receivables transferred prior to
the time when termination and cessation of such transfers is required to be
effective pursuant to the foregoing provisions of this Section 2.19. The parties
hereto acknowledge and agree that, notwithstanding anything to the contrary in
the Purchase and Servicing Agreement or the Receivables Purchase Agreement,
delivery of a Receivables Termination Notice hereunder shall constitute an Early
Amortization Event under (and as defined in) the Purchase and Servicing
Agreement. Neither the Lender Administrative Agent nor Requisite Lenders shall
deliver a Receivables Termination Notice on any date during the continuance of
any Event of Default if on such date the Total Utilization of Revolving Loan
Commitments under (and as defined in) the Credit Agreement is zero.
2.20. Blocked Accounts. The Purchaser Agent (for itself and on behalf
of the Receivables Purchasers) hereby consents to the execution of blocked
account agreements (the "Blocked Account Agreements") with respect to bank
accounts currently held in the name of the Transferor, in accordance with
Section 5(b) of the Security Agreement (it being understood that the Lender
Interest in such bank accounts and amounts held therein shall extend only to
Unsold Receivables and Collections and other proceeds in respect thereof). The
Purchaser Agent agrees, upon the written request of the Lender Administrative
Agent or the Lender Collateral Agent (a
-16- INTERCREDITOR AGREEMENT
"Notification Request"), to provide a written response stating whether or not
the Receivables Documents have been terminated and all monetary obligations
under the Receivables Documents have been satisfied in full and, if such
termination and satisfaction have occurred, to notify the applicable banks as
contemplated in Section 5(b)(i) of the Security Agreement (it being understood
that each of the Lender Administrative Agent and the Lender Collateral Agent
shall deliver an Notification Request only if it believes in good faith that the
Receivables Documents may have terminated and all monetary obligations
thereunder may have been paid, or if it has been instructed in good faith by
Requisite Lenders to make such Notification Request). If the Purchaser Agent (i)
does not respond in writing to such Notification Request or (ii) confirms in
writing that the Receivables Documents have been terminated and all monetary
obligations under the Receivables Documents have been satisfied in full, but
does not so notify the applicable banks, in either case within seven Business
Days of the effectiveness of such Notification Request, the Lender Collateral
Agent shall be entitled to deliver the notice contemplated in Section 5(b)(i) of
the Security Agreement. Notwithstanding anything to the contrary in this Section
2.20, if the Purchaser Agent responds in writing to a Notification Request
within the respective time periods allowed herein for such response, and such
written response states that the Receivables Documents have not terminated or
that all monetary obligations in respect thereof have not been satisfied, the
Lender Collateral Agent (regardless of whether it disputes the statements set
forth in such response) shall not be entitled to deliver the notice contemplated
in Section 5(b)(i) of the Security Agreement unless and until the Purchaser
Agent shall have indicated in writing (or a court of competent jurisdiction
shall have determined) that the Receivables Documents have terminated and all
monetary obligations in respect thereof have been satisfied.
2.21. No Petition; Subordinated Note. Each Lender Agent (for itself
and on behalf of each Lender) hereby agrees (i) that, in connection with its
rights as pledgee of the Subordinated Note, it will comply with the
subordination provisions of the Subordinated Note and (ii) that, prior to the
date that is one year and one day after the date upon which the Receivables
Claim is paid in full, it will not institute against, or join any other Person
in instituting against, the Transferor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other similar proceeding
under any bankruptcy or similar law of the United States or any state of the
United States.
2.22. Designation of Deposit Accounts.
(a) AK Steel hereby designates the following deposit
account as the deposit account to which payments under Section
2.5(a) of the Receivables Purchase Agreement shall be made:
Deposit Account Holder: AK Steel Corporation
Depository Bank: XXXXXXXXXXXXXXXXXXX
Account Number: XXXXXXXXXX
-17- INTERCREDITOR AGREEMENT
(b) The Transferor hereby designates the following deposit
account as the deposit account to which payments under Section
2.06(c) of the Purchase and Servicing Agreement shall be made:
Deposit Account Holder: AK Steel Receivables Ltd.
Depository Bank: XXXXXXXXXXXXXXXXXXX
Account Number: XXXXXXXXXX
(c) Each party hereto agrees to the foregoing designations
and agrees not to designate a different deposit account for any
purpose stated in clause (a) or (b) above without the prior
written consent of the other parties hereto.
ARTICLE 3. MISCELLANEOUS.
3.01. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by
facsimile copy) and delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy or facsimile as to each party
hereto, at its address set forth under its name on Schedule 3.01 hereto or at
such other address as shall be designated by such party in a written notice to
the other parties hereto. All such notices and communications shall be effective
upon receipt or, in the case of notice by telex, when telexed against receipt of
the answerback, or in the case of notice by facsimile copy, when verbal
confirmation of receipt is obtained, in each case addressed as aforesaid.
3.02. Agreement Absolute. Each of the Purchaser Agent and the
Receivables Purchasers shall be deemed to have entered into the Receivables
Documents in express reliance upon this Agreement and the Lenders and each
Lender Agent shall be deemed to have entered into the Loan Documents in express
reliance upon this Agreement. This Agreement may not be modified or amended,
except in accordance with Section 2.12. This Agreement shall be applicable both
before and after the filing of any petition under the U.S. Bankruptcy Code by or
against AK Steel or the Transferor and all references herein to AK Steel or the
Transferor shall be deemed to apply to a debtor-in-possession for such party and
all allocations of payments between the Lenders and the Receivables Purchasers
shall, subject to any court order to the contrary, continue to be made after the
filing of such petition on the same basis that the payments were to be applied
prior to the date of the petition.
3.03. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns. The successors and assigns for AK Steel and the
Transferor shall include a debtor-in-possession or trustee of or for such party.
The successors and assigns for the Lenders, the Receivables Purchasers, the
Lender Administrative Agent, the Lender Collateral Agent and the Purchaser
Agent, as the case may be, shall include any successor Lenders, Receivables
Purchasers, Lender Administrative Agent, Lender Collateral Agent and Purchaser
Agent, as the case may be, appointed under the terms of the Loan Documents or
the Receivables Documents, as applicable. Each of the Lender Agents (for itself
and on behalf of each Lender) and the Purchaser Agent (for itself and on behalf
of each Receivables Purchaser), as the case may be, agrees not to transfer any
interest it may have in the Loan Documents or the Receivables Documents unless
such
-18- INTERCREDITOR AGREEMENT
transferee has been notified of the existence of this Agreement and has agreed
to be bound hereby. Any reference in this Agreement to the Lender Collateral
Agent shall include each Supplemental Collateral Agent (as defined in the Credit
Agreement) that may be appointed from time to time, and each such Supplemental
Collateral Agent shall automatically and without further action become, and be
deemed to have become, a party hereto by its acceptance of its appointment as a
Supplemental Collateral Agent. In the event that the financing provided under
the Credit Agreement shall be refinanced, replaced or refunded, AK Steel, the
Transferor and the Purchaser Agent hereby agree, at the request of the agent or
lenders under the credit facility that so refinances, replaces or refunds the
financing under the Credit Agreement, to execute and deliver a new intercreditor
agreement with such agent and/or lenders on substantially the same terms as
herein provided. In the event that the financing provided under the Receivables
Documents shall be refinanced, replaced or refunded, each Lender Agent (for
itself and on behalf of each Lender) hereby agrees that, at the request of the
agent or purchasers under the facility that so refinances, replaces or refunds
the financing under the Receivables Documents, to execute and deliver a new
intercreditor agreement with such agent and/or purchasers on substantially the
same terms as herein provided.
3.04. Beneficiaries. The terms and provisions of this Agreement shall
be for the sole benefit of the parties hereto, the Lenders and the Receivables
Purchasers and their respective successors and assigns, and no other Person
shall have any right, benefit or priority by reason of this Agreement.
3.05. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS).
3.06. Section Titles. The article and section headings contained in
this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement among the parties hereto.
3.07. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
3.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
* * * * *
-19- INTERCREDITOR AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent
By: /s/ βββββ β. ββββββ
--------------------------------------
βββββ β. ββββββ
Assistant Vice President
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands branch,
as Lender Administrative Agent
By: /s/ ββββββ β. βββββββββ
--------------------------------------
ββββββ βββββββββ
Director
and
By: /s/ βββββ β. βββββ
--------------------------------------
βββββ βββββ
Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender Collateral Agent
By: /s/ ββββ β. ββββ
--------------------------------------
ββββ β. ββββ
Duly Authorized Signatory
INTERCREDITOR AGREEMENT
AK STEEL RECEIVABLES LTD.,
as Transferor
By: AKSR INVESTMENTS, INC.,
as Managing Member
By: /s/ βββββ β. βββββββββ
--------------------------------------
βββββ β. βββββββββ
Treasurer
and
By: AKS INVESTMENTS, INC.,
its only other member
By: /s/ βββββ β. βββββββββ
--------------------------------------
βββββ β. βββββββββ
Treasurer
AK STEEL CORPORATION,
as Originator, as Servicer and as Company
By: /s/ βββββ β. βββββββββ
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βββββ β. βββββββββ
Senior Vice President and
Chief Financial Officer
INTERCREDITOR AGREEMENT