Exhibit 4(c)
INTERCREDITOR AGREEMENT
Dated as of November 30, 2001
by and among
JPMORGAN CHASE BANK,
as a Funding Agent
THE BANK OF NOVA SCOTIA,
as a Funding Agent and as Receivables Collateral Agent
JPMORGAN CHASE BANK,
as Lender Agent
U.S. STEEL RECEIVABLES LLC,
as Transferor,
and
UNITED STATES STEEL LLC,
as Originator, as Initial Servicer and as Borrower
This INTERCREDITOR AGREEMENT dated as of November 30, 2001 (as
modified, amended, restated or supplemented from time to time, this
"Agreement"), by and among JPMORGAN CHASE BANK, in its capacity as a funding
agent under the Receivables Purchase Agreement (as hereinafter defined) (a
"Funding Agent"), THE BANK OF NOVA SCOTIA, in its capacity as a funding agent
under the Receivables Purchase Agreement (as hereinafter defined) (a "Funding
Agent" and, together with the other Funding Agents, the "Funding Agents") and in
its capacity as Collateral Agent under the Receivables Purchase Agreement (as
hereinafter defined) (the "Receivables Collateral Agent"), JPMORGAN CHASE BANK,
in its capacity as Collateral Agent on behalf of the Lenders (as defined below)
(the "Lender Agent"), U.S. STEEL RECEIVABLES LLC (the "Transferor"), and UNITED
STATES STEEL LLC ("USS").
RECITALS:
A. USS has agreed to sell, transfer and assign to the Transferor, and
the Transferor has agreed to purchase or otherwise acquire from USS and the
various entities that are from time to time Originators under (and as defined
in) the Purchase and Sale Agreement (collectively, together with USS in its
capacity as an Originator under (and as defined in) the Purchase and Sale
Agreement, the "Originators") all of the right, title and interest of the
Originators in the Receivables (as hereinafter defined) pursuant to a Purchase
and Sale Agreement dated as of November 28, 2001 (as amended, supplemented,
modified or restated from time to time, the "Purchase and Sale Agreement").
B. The Transferor, as seller, USS, in its capacity as initial
servicer, the Receivables Collateral Agent, the Funding Agents and the
Receivables Purchasers (as defined below) are parties to an Amended and Restated
Receivables Purchase Agreement dated as of November 28, 2001 (as amended,
supplemented, modified or restated from time to time, the "Receivables Purchase
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 Purchase and Sale Agreement and (ii) the
Transferor has granted a lien on the Receivables to the Receivables Collateral
Agent.
C. The Purchase and Sale Agreement and the Receivables Purchase
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.
D. USS, the Lender Agent and the financial institutions from time to
time party thereto (collectively, the "Lenders") are parties to a Credit
Agreement dated as of November 30, 2001 (as amended, supplemented, modified or
restated from time to time, the "Credit Agreement"). Capitalized terms used but
not defined herein shall have the meaning ascribed thereto in the Credit
Agreement.
E. To secure USS's obligations to the Lenders and Lender Agent under
the Credit Agreement and other Loan Documents (as hereinafter defined), USS has
granted to the Lender Agent for the benefit of the Lender Agent and the Lenders
a lien over, among other
things, certain accounts receivable and certain general intangibles, including
the Unsold Receivables (as hereinafter defined), certain inventory and all
proceeds of the foregoing.
F. The parties hereto wish to set forth certain agreements with
respect to the Receivables Assets (as hereinafter defined) and with respect to
the 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.
1.1. Certain Defined Terms. As used in this Agreement, the following
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terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"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.
"Collateral" means all property and interests in property, now owned
or hereafter acquired or created, of USS in or upon which a Lender Interest is
granted or purported to be granted by USS to the Lenders or the Lender Agent
under any of the Loan Documents.
"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 by the Transferor, USS (in its capacity as
Servicer under (and as defined in) the Receivables Purchase Agreement) or any
Originator 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
USS in respect of such Receivable pursuant to the Purchase and Sale Agreement
and/or the Receivables Purchase Agreement.
"Contract" has the meaning ascribed to such term in the Receivables
Purchase Agreement.
"Disposition" means, with respect to any assets of USS, any
liquidation of USS or its assets, the establishment of any receivership for USS
or its assets, a bankruptcy proceeding of USS (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.
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"Eligible Transferee" has the meaning ascribed to such term in the
Security Agreement.
"Enforcement" means collectively or individually, for (a) any of the
Receivables Collateral Agent, the Funding Agents or the Receivables Purchasers
to (i) declare the Facility Termination Date 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
Agent or the Lenders during the continuance of a Lender Event of Default (i) to
demand payment in full of or accelerate the indebtedness of the Borrower to the
Lenders and Lender Agent 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 2.5 which notice shall (i) if delivered by the Receivables
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Collateral Agent, state that the Facility Termination Date has occurred, specify
the nature of the Termination Event that has caused the declaration of such
Facility Termination Date, and state that an Enforcement Period has commenced
and (ii) if delivered by the Lender 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 the Borrower 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 Agent, on the one hand, or the Receivables Collateral Agent,
on the other, of an Enforcement Notice delivered by any of the others until the
earliest of the following: (1) 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; (2)
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 (3) the parties hereto agree in writing to terminate the
Enforcement Period.
"Facility Termination Date" has the meaning ascribed to such term in
the Receivables Purchase Agreement.
"Lenders" shall mean the Lenders under the Credit Agreement, the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Co-Collateral Agent and each other Secured Party (as defined in the Security
Agreement).
"Lender Claim" means all of the indebtedness, obligations and other
liabilities of USS now or hereafter arising under, or in connection with, the
Loan Documents including, but not limited to, all sums now or hereafter loaned
or advanced to or for the benefit of USS, all reimbursement obligations of USS
with respect to letters of credit, any interest thereon (including, without
limitation, interest accruing after the commencement of a bankruptcy, insolvency
or similar proceeding relating to USS, whether or not such interest is an
allowed claim in any such proceeding), any reimbursement obligations, fees or
expenses due thereunder, and any costs of collection or enforcement.
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"Lender Collateral" means all Collateral which does not constitute
Receivables Assets.
"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 USS, any lien, claim,
encumbrance, security interest or other interest of the 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
Sale Agreement.
"Outstanding Balance" has the meaning ascribed to such term in the
Receivables Purchase Agreement.
"Person" means any individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture or other entity.
"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 any Originator to the Transferor or another
Eligible Transferee under the Purchase and Sale Agreement in connection with the
Effective Date Receivables Financing.
"Receivable" means:
(a) indebtedness and other obligations of, or the right of the
Transferor or any 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;
(b) all security interests or liens and property subject thereto from
time to time securing or purporting to secure any such indebtedness by such
Obligor;
(c) all guarantees, 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;
(d) all Collections with respect to any of the foregoing;
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(e) all Records with respect to any of the foregoing; and
(f) 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 Purchase and Sale
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 Originators to the Transferor and of the Originators and the
Transferor to the Receivables Purchasers, the Receivables Collateral Agent
and/or the Funding Agents 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 otherwise under the Receivables Purchase Agreement, any yield
thereon (including, without limitation, yield accruing after the commencement of
a bankruptcy, insolvency or similar proceeding relating to USS or the
Transferor, whether or not such yield is an allowed claim in any such
proceeding), any repayment obligations, fees or expenses due thereunder, and any
costs of collection or enforcement.
"Receivables Documents" means the Purchase and Sale Agreement, the
Receivables Purchase Agreement and any other agreements, instruments or
documents (i) executed by the Originators and delivered to the Transferor, the
Funding Agents, the Receivables Collateral Agent or the Receivables Purchasers
or (ii) executed by the Transferor and delivered to the Funding Agents, the
Receivables Collateral Agent or the Receivables Purchasers.
"Receivables Interest" means, with respect to any property or
interests in property, now owned or hereafter acquired or created, of any
Originator (regardless of whether sold or contributed by such Originator to the
Transferor), any lien, claim, encumbrance, security interest or other interest
of the Transferor and/or the Receivables Collateral Agent, the Funding Agents or
any Receivables Purchaser in such property or interests in property.
"Receivables Purchaser" means each Person from time to time party to
the Receivables Purchase Agreement in the capacity of a "CP Conduit Purchaser"
or a "Committed Purchaser" (in each case, as defined in the Receivables Purchase
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.
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"Returned Goods" means all right, title and interest of any
Originator, the Transferor, the Receivables Collateral 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.
"Termination Event" has the meaning ascribed to such term in the
Receivables Purchase Agreement.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York.
"Unsold Receivables" means any Receivables other than Purchased
Receivables.
1.2. References to Terms Defined in the Receivables Documents and the
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Loan Documents. Whenever in Section 1.1 a term is defined by reference to the
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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.
2.1. Priorities with Respect to Receivables Assets. Notwithstanding
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any provision of the UCC, any applicable law or decision or any of the Loan
Documents or the Receivables Documents, the Lender Agent (for itself and on
behalf of each Lender) hereby agrees that, upon the sale or other transfer
(including, without limitation, by way of capital contribution) of any
Receivable (or interest therein) by an Originator to the Transferor pursuant to
the Purchase and Sale Agreement, any Lender Interest of the Lenders or the
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 the Lender Agent and the Lenders shall have no Lender Interest
therein; provided, however, that nothing in this Section 2.1 shall be deemed to
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constitute a release by the Lender Agent and the Lenders of: (i) any Lender
Interest in the proceeds received by USS from the Transferor for the sale of
Receivables pursuant to the Purchase and Sale Agreement (including, without
limitation, cash payments made by the Transferor); (ii) any Lender Interest or
right of the Lender Agent and the Lenders in any interests which USS may acquire
from the Transferor and/or the Receivables Collateral Agent or the Funding
Agents have in Returned Goods; and (iii) any Lender Interest or right the
Lenders or the Lender Agent have in any Unsold Receivables and the proceeds
thereof; provided further, however, that any Lender Interest in such Returned
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Goods shall be junior and subject and subordinate to the Receivables Interest
therein unless and until each of USS 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 USS, on behalf of the Transferor, then, upon
payment by USS or the Transferor of all adjustments required on account thereof
under the
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Receivables Purchase 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.
2.2. Respective Interests in Receivables Assets and Lender Collateral.
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(a) Except for all rights to access to and use of Records granted to
the Receivables Collateral Agent and the Receivables Purchasers pursuant to the
Receivables Documents and except for the Receivables Interest of the Receivables
Collateral Agent (for the benefit of the Funding Agents and Receivables
Purchasers) in Returned Goods, which interest is senior in all respects to any
Lender Interest therein subject to Section 2.1, each of the Transferor and the
Receivables Collateral 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. Each of the Transferor and the Receivables
Collateral Agent (for itself and on behalf of each Receivables Purchaser) agrees
that it shall not request or accept, directly or indirectly (by assignment or
otherwise) from USS any collateral security for payment of any Receivables
Claims (other than any such collateral security included in the Receivables
Assets and the right of access to and use of Records granted to the Receivables
Collateral Agent and the Receivables Purchasers pursuant to the Receivables
Documents) and hereby releases any Receivables Interest in any such collateral
security.
(b) Except for rights in Returned Goods granted to the Lender Agent
and the Lenders pursuant to the Loan Documents, which Lender Interest is junior
and subordinate to any Receivables Interest therein, the Lender Agent (for
itself and on behalf of each Lender) agrees that neither the Lender Agent nor
the Lenders have, nor shall they have, any Lender Interest in the Receivables
Assets.
2.3. Distribution of Proceeds. At all times, all proceeds of Lender
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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 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 USS or as otherwise required by applicable
law, and the Transferor and the Receivables Collateral Agent (for itself and on
behalf of each Receivables Purchaser) agrees that none of the Transferor, the
Receivables Collateral 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 which the Transferor, the
Receivables Collateral Agent, the Funding Agents or the Receivables Purchasers
may have against USS under the Receivables Documents or otherwise.
(b) (i) All proceeds of the Receivables Assets shall be paid to the
Receivables Collateral Agent for application against the Receivables Claim and
for application in accordance
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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 2.1 hereof, any remaining proceeds shall be paid to the
Transferor or as otherwise required by applicable law. The Lender Agent (for
itself and on behalf of each Lender) agrees that, except as set forth in Section
2.1 hereof, neither the 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 which the Lender Agent or the
Lenders may have against USS under the Loan Documents or otherwise.
(c) In the event that any of the Transferor, the Receivables
Collateral Agent or the Receivables Purchasers now or hereafter obtains
possession of any Lender Collateral, it shall immediately deliver to the Lender
Agent such Lender Collateral (and until delivered to the Lender Agent such
Lender Collateral shall be held in trust for the Lender Agent). Each of the
Transferor, the Receivables Collateral Agent (for itself and on behalf of each
Receivables Purchaser) further agrees to immediately turn over the proceeds of
any Disposition of Lender Collateral which 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 the Lender
Agent has a perfected and enforceable lien in the assets of USS from which the
proceeds of any such Disposition have been received.
(d) In the event that the Borrower, the Lenders or the Lender Agent
now or hereafter obtains possession of any Receivables Assets, it shall
immediately deliver to the Receivables Collateral Agent such Receivables Assets
(and until delivered to the Receivables Collateral Agent such Receivables Assets
shall be held in trust for the Receivables Collateral Agent). The Borrower and
the Lender Agent (for itself and on behalf of each Lender) further agrees to
immediately turn over the proceeds of any Disposition of Receivables Assets to
the Receivables Collateral Agent which 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 Receivables Collateral
Agent has a perfected and enforceable lien in the assets from which the proceeds
of such Disposition have been received.
(e) USS agrees to keep all Returned Goods segregated from Inventory.
If any Inventory of USS has been commingled with Returned Goods in which the
Receivables Interest continues as provided in Section 2.1 above, and the Lender
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Agent or any Lender receives any proceeds on account of such inventory (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
inventory shall be paid to the Lender Agent and the Lender Agent shall,
immediately upon receipt of such proceeds, pay to the Receivables Collateral
Agent for application against the Receivables Claim a share of such proceeds
equal to the dollar amount thereof multiplied by a fraction, the numerator of
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which equals the book value of the Returned Goods and the denominator of which
equals the book value of all of the inventory on account of which the Lender
Agent has received such cash proceeds; and (ii) any remaining proceeds shall be
paid to the Lender Agent for application against the Lender Claim.
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2.4. Unsold Receivables.
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(a) The Transferor and the Receivables Collateral Agent (for itself
and on behalf of each Receivables Purchaser) hereby acknowledge that the Lender
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 Receivables Assets shall be paid or delivered to the
Receivables Collateral Agent for application in accordance with Section 2.3(b)
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and all Collections received on account of Unsold Receivables shall be paid or
delivered to the Lender Agent for application in accordance with Section 2.3(a).
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(c) The 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 latest of payment in full of the Receivables Claim and
the termination of the Receivables Documents, except that, from and after any
date on which (x) a Receivables Termination Notice has been delivered pursuant
to Section 2.19, (y) the termination and cessation of transfers of Receivables
is required to be effective under the terms of Section 2.19 and (z) the
Receivables Claim has been paid in full or the Purchased Receivables giving rise
to any unpaid Receivables Claim have been written off in accordance with their
terms, the Lender Agent may inform any Obligors of Unsold Receivables that such
Unsold Receivables have been assigned to the Lender Agent so long as such
notices do not under any circumstances direct that payments on account of such
Unsold Receivables be made to any location or account to which payments on
account of Purchased Receivables are required to be made pursuant to the terms
of the Receivables Documents.
2.5. Enforcement Actions. Each of the Lender Agent and the Receivables
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Collateral Agent agrees to use reasonable efforts to give an Enforcement Notice
to the others 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 Receivables Collateral 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 to foreclose or realize upon or enforce any of its
rights with respect to the Receivables Assets; provided, however, that the
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Receivables Collateral 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 which have been commingled
with the Lender Collateral without the prior written consent of the Lender
Agent.
(b) Subject to any applicable restrictions in the Loan Documents, the
Lender Agent or the Lenders may, at their option and without the prior
consent of the other
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parties hereto, take any action to accelerate payment of the Lender Claim
or any other obligation or 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 2.3(e), with respect to any
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Receivables Assets constituting Returned Goods that have been commingled
with the Lender Collateral, or take any other actions as they deem
appropriate; provided, however, that the Lender Agent shall not otherwise
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take any action to foreclose or realize upon or to enforce any rights it
may have with respect to uncommingled Returned Goods without the
Receivables Collateral Agent's prior written consent unless 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 such Returned Goods and Inventory and
the application of the proceeds thereof as provided in Section 2.3(e).
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2.6. Access to Records. Subject to any applicable restrictions in the
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Receivables Documents (but without limiting any rights under the Receivables
Documents), each of the Receivables Purchasers, the Funding Agents and the
Receivables Collateral Agent may enter one or more premises of USS, 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 USS, the Transferor, such affiliates,
the Lenders or the 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 the Receivables Collateral Agent's, Funding Agent's
and/or the Receivables Purchasers' rights with respect to the Receivables
Assets.
2.7. Accountings. The Lender Agent agrees to render statements to the
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Receivables Collateral Agent upon reasonable request, which statements shall
identify in reasonable detail the Unsold Receivables and shall render an account
of the Lender Claim, giving effect to the application of proceeds of Lender
Collateral as hereinbefore provided. USS agrees to render statements to the
Lender Agent upon reasonable request, 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 Collateral as hereinbefore provided ; provided that the Receivables
Collateral Agent agrees to render such statements to the Lender Agent upon
reasonable request from and after the date (if any) on which USS has ceased to
be the Servicer under (and as defined in) the Receivables Purchase Agreement.
USS and the Transferor hereby authorize the Lender Agent and the Receivables
Collateral Agent to provide the statements described in this section. None of
the Lender Agent, USS or the Receivables Collateral Agent shall bear any
liability if their respective accounts are incorrect.
2.8. Agency for Perfection. The Receivables Collateral Agent and the
---------------------
Lender Agent hereby appoint each other as agent for purposes of perfecting by
possession their respective security interests and ownership interests and liens
on the Collateral and Receivables
10
Assets described hereunder. In the event that the Receivables Collateral Agent
obtains possession of any of the Lender Collateral, the Receivables Collateral
Agent shall notify the Lender Agent of such fact, shall hold such Lender
Collateral in trust and shall deliver such Lender Collateral to the Lender Agent
upon request. In the event that the Lender Agent obtains possession of any of
the Receivables Assets, the Lender Agent shall notify the Receivables Collateral
Agent of such fact, shall hold such Receivables Assets in trust and shall
deliver such Receivables Assets to the Receivables Collateral Agent upon
request.
2.9. 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 3.1 hereof and ten (10) days'
-----------
notice shall be deemed to be commercially reasonable.
2.10. Independent Credit Investigations. Neither the Receivables
---------------------------------
Purchasers, the Receivables Collateral Agent, the 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, firm or corporation for the
solvency, financial condition or ability of USS, any other Originator 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 USS,
any other Originator, the Transferor or the Borrower, oral or written, or for
the validity, sufficiency or enforceability of the Receivables Claim, the Lender
Claim, the Receivables Documents, the Loan Documents, the Receivables Collateral
Agent's interest in the Receivables Assets or the Lenders' or Lender Agent's
interest in the Lender Collateral. The Lenders and the Receivables Purchasers
have entered into their respective agreements with USS, the Transferor or the
Borrower, as applicable, based upon their own independent investigations. None
of the Lenders, the Receivables Collateral 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 to any other party except for liability arising
from the gross negligence or willful misconduct of such party or its
representatives.
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 Receivables Collateral 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 Documents)
or the Receivables Claim (or any other obligation or liability under the
Receivables Documents), as applicable, prior to proceeding against other
property securing such Claim or obligations or liabilities or against certain
persons guaranteeing
11
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 Receivables Collateral 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 Receivables Collateral Agent and the Receivables
Purchasers shall be entitled to rely on the power and authority of the Lender
Agent to act on behalf of all of the Lenders Parties (as defined in the Credit
Agreement) to the extent the provisions hereof have the Lender Agent so act.
(b) The Lender Agent and the Lenders shall be entitled to rely on the
power and authority of the Receivables Collateral Agent to act on behalf of the
Funding Agents and Receivables Purchasers to the extent the provisions hereof
have the Receivables Collateral Agent so act.
2.15. Effect Upon Loan Documents and Receivables Documents. By
----------------------------------------------------
executing this Agreement, USS and the Transferor agree to be bound by the
provisions hereof (i) as they relate to the relative rights of the Lenders and
the Lender Agent with respect to the property of USS; and (ii) as they relate to
the relative rights of USS, the other Originators, the Transferor, the
Receivables Purchasers, the Funding Agents and/or the Receivables Collateral
Agent as creditors of (or purchasers from) USS, the other Originators or the
Transferor, as the case may be. USS acknowledges that the provisions of this
Agreement shall not give it any substantive rights as against the 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 between USS, the Lender Agent and the Lenders. The Transferor and
USS acknowledge that the provisions of this Agreement shall not give the
Transferor, USS or any other Originator any substantive rights as against the
Receivables Collateral Agent, the Funding Agents 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, USS, the other Originators, the Receivables Collateral
Agent, the Funding Agents or the Receivables Purchasers. USS and the Transferor
further acknowledge that the provisions of this Agreement shall not give any
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 USS, the other Originators and the Transferor.
Notwithstanding the foregoing, each of the Receivables Collateral Agent (for
itself and on behalf of each Receivables Purchaser), and the Lender Agent (for
itself and on behalf of each Lender) agrees, that, as between themselves, to the
extent 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 Receivables Collateral Agent (for itself and on
behalf of each Receivables Purchaser) acknowledge that the Lender Claim and
other obligations and liabilities
12
owing under the Loan Documents are, in part, revolving in nature and that the
amount of such revolving indebtedness which 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 or
consent by any of the Transferor, the Receivables Collateral Agent or the
Receivables Purchasers and without affecting the provisions of this Agreement.
Without in any way limiting the foregoing, each of the Transferor or the
Receivables Collateral 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. USS and the 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 which 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 USS, the Lenders or the 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 USS of its obligation to comply with the covenants under
the Credit Agreement. Without in any way limiting the foregoing, each of USS and
the Lender Agent (for itself and on behalf of each Lender) hereby agrees that
the maximum amount of Receivables Claim and other obligations and liabilities
owing under the Receivables Documents and the amount of Receivables which 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 to otherwise
---------
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 Agent or the Required Lenders to the
Receivables Collateral Agent (a "Receivables Termination Notice"), the Funding
Agents and USS, (i) USS shall terminate and cease all transfers of Receivables
from the Originators to the Transferor and (ii) the Transferor and the
Receivables Collateral Agent, Receivables Purchasers and Funding Agents shall
terminate and cease, or shall cause the termination and cessation of, all
transfers of Receivables from the Transferor to the Receivables Purchasers or
the Funding Agents (all such termination and cessation under clauses (i) and
(ii) to be effective at the close of business on the Business Day after such
Receivables Termination Notice is effective in accordance with Section 3.1
-----------
unless on the date of such notice USS certifies in writing to the Lender Agent
(which certification USS covenants and agrees to provide, if true) that the
Purchased Interest (as defined in the Receivables Purchase Agreement) exceeds
100%, in which case all such termination and cessation shall be effective at the
close of business two Business Days after the Receivables
13
Termination Notice is effective in accordance with Section 3.1); provided that
------------
in the case of a Lender Event of Default resulting from the commencement of a
bankruptcy, insolvency or similar proceeding relating to USS, 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, Receivables Collateral
Agent, Receivables Purchasers or Funding Agents 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 Receivables Purchase Agreement or the Purchase and Sale
Agreement, delivery of a Receivables Termination Notice hereunder shall
constitute a Termination Event under (and as defined in) the Receivables
Purchase Agreement, and the Receivables Collateral Agent, the Transferor, the
Receivables Purchasers and the Funding Agents shall be authorized to terminate
and cease (or cause the termination and cessation of) transfers of Receivables
as described in clause (ii) of the first sentence of this Section 2.19. Neither
the Lender Agent nor the Required Lenders shall deliver a Receivables
Termination Notice on any date during the continuance of any Event of Default if
on such date the Total Outstanding Amount under (and as defined in) the Credit
Agreement is zero.
2.20. Blocked Accounts. The Receivables Collateral Agent (for itself
----------------
and on behalf of the Receivables Purchasers and Funding Agents) 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)(ii) 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 Receivables Collateral Agent agrees, upon the
written request of the Lender Agent (an "Initial 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)(ii)(x)
of the Security Agreement (it being understood that the Lender Agent shall
deliver an Initial Notification Request only if it believes in good faith belief
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 the
Required Lenders to make such Initial Notification Request). If the Receivables
Collateral Agent (i) does not respond in writing to such Initial 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 five Business Days of the effectiveness of such Initial Notification
Request, the Lender Agent may deliver a Final Notification Request (as defined
below). During the continuance of the Receivables Collateral Agent's failure to
respond or give requisite notice to the applicable banks, each of the Funding
Agents party hereto agrees, upon the written request of the Lender Agent (a
"Final Notification Request"), to state whether or not the Receivables Documents
have been terminated and all monetary obligations under the Receivables
Documents have been satisfied and, if such termination and satisfaction have
occurred, to use all commercially reasonable efforts to cause the Receivables
Collateral Agent to notify the applicable banks as contemplated in Section
5(b)(ii)(x) of the Security Agreement. In
14
the event that the Funding Agents have not complied with, or caused the
Receivables Collateral Agent to comply with, such Final Notification Request
within three Business Days of the effectiveness of such Final Notification
Request, the Lender Agent shall be entitled to deliver the notice contemplated
in Section 5(b)(ii)(x) of the Security Agreement. Notwithstanding anything to
the contrary in this Section 2.20, if the Receivables Collateral Agent or any
Funding Agent responds in writing to an Initial Notification Request or a Final
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 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)(ii)(x) of the Security Agreement unless and until
the Receivables Collateral Agent or a Funding 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. The Lender Agent (for itself and on behalf of each
-----------
Lender) hereby agrees that, prior to the date which is one year and one day
after 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.
ARTICLE 3. MISCELLANEOUS
3.1. Notices. All notices and other communications provided for
-------
hereunder shall, unless otherwise stated herein, be in writing (including
telecommunications and communication 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 the signature pages hereof 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.
3.2. Agreement Absolute. Each of the Receivables Collateral 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 the 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 by or against USS, any other
Originator or the Transferor under the U.S. Bankruptcy Code and all references
herein to USS, any other Originator 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.
15
3.3. 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 USS, the other
Originators 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 Funding Agents, the Lenders Agent and the
Receivables Collateral Agent, as the case may be, shall include any successor
Lenders, Receivables Purchasers, the Funding Agents, Lender Agent and
Receivables Collateral Agent, as the case may be, appointed under the terms of
the Loan Documents or the Receivables Documents, as applicable. Each of the
Lender Agent (for itself and on behalf of each Lender) and the Receivables
Collateral 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 transferee has been notified
of the existence of this Agreement and has agreed to be bound hereby. In the
event that the financing provided under the Credit Agreement shall be
refinanced, replaced or refunded, USS, the Transferor and the Receivables
Collateral 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, the 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.
3.4. Beneficiaries. The terms and provisions of this Agreement shall
-------------
be for the sole benefit of the parties hereto, the Lenders, the Funding Agents
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.
3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401
OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PROVISIONS).
3.6. 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 between the parties hereto.
3.7. 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.
3.8. 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.
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
JPMORGAN CHASE BANK,
as a Funding Agent
By: /s/ Bradley Schwartz
----------------------
Name: Bradley Schwartz
Title: Managing Director
Address:
---------------------------
---------------------------
Attention:
--------------------------
Telecopy: ( ) -
--- --- ---------
17
THE BANK OF NOVA SCOTIA,
as a Funding Agent and as
Receivables Collateral Agent
By: /s/ J. Alan Edwards
--------------------------
Name: J. Alan Edwards
Title: Managing Director
Address:
---------------------------
---------------------------
Attention:
--------------------------
Telecopy: ( ) -
--- --- ---------
18
JPMORGAN CHASE BANK,
as Lender Agent
By: /s/ James H. Ramage
------------------------
Name: James H. Ramage
Title: Managing Director
Address:
---------------------------
---------------------------
Attention:
--------------------------
Telecopy: ( ) -
--- --- ---------
19
U.S. STEEL RECEIVABLES LLC,
as Transferor
By: /s/ D. C. Greiner
------------------------
Name: D. C. Greiner
Title: Treasurer
Address:
---------------------------
---------------------------
Attention:
--------------------------
Telecopy: ( ) -
--- --- ---------
20
UNITED STATES STEEL LLC,
as Originator, as Servicer and as
Borrower
By: /s/ G. R. Haggerty
-------------------------
Name: G. R. Haggerty
Title: Vice President
Address:
---------------------------
---------------------------
Attention:
--------------------------
Telecopy: ( ) -
--- --- ---------
21
Accepted and Agreed:
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral
Agent under the Credit Agreement
By: /s/ James H. Ramage
-----------------------
Name: James H. Ramage
Title: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Collateral Agent under the Credit Agreement
By: /s/ Christopher Cox
-----------------------------
Name: Christopher Cox
Title: Duly Authorized Signatory
22