EXHIBIT 10.1
SECOND AMENDMENT TO THE SECOND AMENDED
AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT, dated as of July 21, 2010 (this "Amendment"), is entered
into by and among U. S. STEEL RECEIVABLES LLC, a Delaware limited liability
company, as Seller (the "Seller"), UNITED STATES STEEL CORPORATION (in its
individual capacity "USS"), a Delaware corporation, as initial Servicer (in such
capacity, together with its successors and permitted assigns in such capacity,
the "Servicer"), the FUNDING AGENTS listed on the signature pages hereto, the CP
CONDUIT PURCHASERS listed on the signature pages hereto, the COMMITTED
PURCHASERS listed on the signature pages hereto, the LC BANKS listed on the
signature pages hereto and THE BANK OF NOVA SCOTIA, a Canadian chartered bank
acting through its New York Agency, as Collateral Agent for the CP Conduit
Purchasers, Committed Purchasers and LC Banks (in such capacity, together with
its successors and assigns in such capacity, the "Collateral Agent").
Capitalized terms used and not otherwise defined herein are used as defined in
the Second Amended and Restated Receivables Purchase Agreement, dated as of
September 27, 2006 (as amended or otherwise modified through the date hereof,
the "Agreement"), among the Seller, the Servicer, the CP Conduit Purchasers from
time to time party thereto, the Committed Purchasers from time to time party
thereto, the LC Banks from time to time party thereto, the Funding Agents and
the Collateral Agent.
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein.
NOW THEREFORE, in consideration of the premises and other material
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments to the Agreement.
(a) Clauses (a), (b) and (e) of Section 1.9 of the Agreement are
hereby amended and restated in their entirety as set forth below:
(a) If any Funding Agent, any Purchaser, any Program Support
Provider or any of their respective Affiliates (each an "Affected
Person") reasonably determines that the existence of or compliance
with: (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued
or occurring after the date hereof, (ii) any request, guideline or
directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after
the date of this Agreement, or (iii) the Accord adopted in June 2004
by the Basel Committee on Banking Supervision, as implemented by the
United States federal bank regulatory agencies (or the other
applicable regulators, foreign or domestic, for such Affected Person)
and/or the final rule titled "Risk-Based Capital Guidelines; Capital
Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact
of Modifications to Generally Accepted Accounting Principles;
Consolidation of Asset-Backed Commercial Paper Programs; and Other
Related Issues", adopted by the United States bank regulatory
agencies on December 15, 2009, or any change, revision, supplement or
replacement thereof or thereto from time to time, or any laws, rules,
regulations or interpretations promulgated in connection
therewith or replacement thereof by any such United States bank
regulatory agencies or by any other agencies, government or
regulator, foreign or domestic (whether the compliance by such
Affected Person therewith was commenced prior to or after the date
hereof) (collectively, "Basel II"), affects or would affect the
amount of capital required or expected to be maintained by such
Affected Person, and such Affected Person determines that the amount
of such capital is increased by or based upon the existence of any
commitment to make purchases of, or issue Letters of Credit in
respect of (or otherwise to maintain the investment in) Pool
Receivables related to this Agreement or any related liquidity
facility, credit enhancement facility and other commitments of the
same type, then, upon written demand by such Affected Person
(accompanied by the certificate referred to in the next sentence,
with a copy to the applicable Funding Agent), the Seller shall
promptly pay to the applicable Funding Agent, for the account of
such Affected Person, from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such Affected
Person. A certificate describing in reasonable detail such amounts
and the basis for such Affected Person's demand for such amounts
submitted to the Seller and the applicable Funding Agent by such
Affected Person shall be conclusive and binding for all purposes,
absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or
in the interpretation of any law or regulation occurring after the
date hereof, (ii) compliance with any guideline or request occurring
after the date hereof from any central bank or other Governmental
Authority (whether or not having the force of law), or (iii) Basel
II (whether the compliance by such Affected Person therewith was
commenced prior to or after the date hereof), there shall be any
increase in the cost to any Affected Person of agreeing to purchase
or purchasing, or maintaining the ownership of, the Purchased
Interest in respect of which Discount is computed by reference to the
Eurodollar Rate, then, upon written demand by such Affected Person
(accompanied by the certificate referred to in the next sentence,
with a copy to the applicable Funding Agent), the Seller shall
promptly pay to such Affected Person, from time to time as specified
by such Affected Person, additional amounts sufficient to compensate
such Affected Person for such increased costs. A certificate
describing, in reasonable detail, such amounts and the basis for such
Affected Person's demand for such amounts submitted to the Seller and
the applicable Funding Agent by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(e) For the avoidance of doubt, any increase in cost and/or
reduction in yield with respect to any Affected Person caused by
regulatory capital allocation adjustments due to FASB's
Interpretation 46 (revised December 2003) Consolidation of Variable
Interest Entities and Interpretation of Accounting Research Bulletin
No. 51 or Statements of Financial Accounting Standards Nos. 166 and
167 (or any future statements or interpretations issued by FASB)
shall be covered by this Section 1.9.
(b) Section 1.10 of the Agreement is hereby amended by (a)
deleting the word "or" at the end of clause (a) thereof and (b)
inserting, immediately prior to the colon at the end of clause
(ii) thereof, the following new clause (iii): ", or (iii) Basel
II (whether the compliance by such Affected Person therewith was
commenced prior to or after the date hereof) ".
(c) Clause (iii) of the proviso to Section 6.13 of the Agreement
is hereby amended by inserting, immediately after the words "CP
Conduit Purchaser", the following words: "or any nationally
recognized statistical rating organization".
(d) The "Commitment" with respect to each Purchaser Group is
hereby amended to be the amount set forth below the signature of
the Funding Agent for such Purchaser Group as set forth on the
signature pages hereto.
(e) The definition of "Commitment Expiry Date" set forth in
Exhibit I to the Agreement is hereby amended by deleting the
reference to the date "September 24, 2010" therein and
substituting a reference to the date "July 19, 2013" therefor.
(f) The definition of "Special Obligor" as set forth in Exhibit
I to the Agreement is hereby amended by (a) deleting the word
"and" at the end of clause (ii) thereof and replacing it with a
comma and (b) inserting, immediately prior to the period at the
end of clause (iii) thereof, the following new clause (iv): "and
(iv) the Collateral Agent may (and shall, upon the direction of
any Conduit Purchaser) at any time, upon not less than ten (10)
Business Days' notice to the Seller and each Funding Agent,
revoke the designation of any of Sooner Pipe, Whirlpool
Corporation and Ford Motor Company as a Special Obligor or reduce
the Concentration Percentage for such Special Obligor".
(g) Schedule IV to the Agreement is hereby amended and restated
in its entirety as set forth on Schedule I attached hereto.
(h) Schedule II to the Agreement is hereby amended and restated
in its entirety as set forth on Schedule II attached hereto.
(i) Clause (k) of Exhibit V to the Agreement is hereby amended by
amended and restated in its entirety as follows: USS or any of its
Subsidiaries (other than the Seller) shall fail to pay any
principal of or premium or interest on any of its Debt that is
outstanding in a principal amount of at least $100,000,000 in
the aggregate when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement,
mortgage, indenture or instrument relating to such Debt; it being
agreed that, solely for purposes of this clause (k), the term
"Subsidiaries" shall not include any entity that is not, directly or
indirectly, wholly owned by the Servicer so long as the Servicer has
no obligation to pay the applicable Debt of such entity in the event
of a default by such entity; and
SECTION 2. Additional Agreements. The Seller and the Servicer have
previously notified the Collateral Agent, the CP Conduit Purchasers, the
Committed Purchasers, the Funding Agents and the LC Banks (the Collateral
Agent, the CP Conduit Purchasers, the Committed Purchasers, the Funding Agents
and the LC Banks, each, a "Purchaser Party" and collectively, the "Purchaser
Parties") that the Servicer is currently implementing a new Enterprise Resource
Planning "ERP" system. In the event that the Servicer determines, in its
reasonable business judgment, that the implementation of the ERP system could
affect in any material respect its compliance with its duties or
obligations under the Transaction Documents, the Servicer (i) shall notify the
Purchaser Parties in writing promptly upon such determination, such notice to
describe such potential noncompliance and steps that the Servicer is taking to
cure the potential noncompliance and (ii) may propose amendments to the
Transaction Documents which the Servicer believes, in its reasonable business
judgment, may be necessary or appropriate to cure such potential
noncompliance. Each of the Seller, the Servicer and the Purchaser Parties
agree to consider all such proposals by the Servicer, and any counter-proposals
by the Purchaser Parties, in good faith, and to implement any such amendments
that may be necessary or appropriate to cure such potential noncompliance;
provided that any such amendments could not, in such Purchaser Party's sole
judgment, adversely affect the respective rights of such Purchaser Party under
the Transaction Documents.
SECTION 3. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement
as modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement, as amended by
this Amendment, as though such terms and conditions were set forth herein.
SECTION 4. Effectiveness of this Amendment. This Amendment shall become
effective as of the date hereof upon receipt by the Collateral Agent of
each of the following, each in form and substance satisfactory to the
Collateral Agent:
(i) counterparts of this Amendment duly executed by each of the
parties hereto;
(ii) evidence that each Funding Agent is in receipt of counterparts
of the amended and restated Fee Letter, dated as of the date
hereof, duly executed by each of the parties thereto (including
receipt of any "Renewal Fee" set forth therein); and
(iii)evidence of the payment by the Seller and the Servicer of all
fees (including all due diligence costs and expenses and
attorneys' fees, costs and expenses) due and payable as of the
date of this Amendment to the Collateral Agent, each Funding
Agent and their collective counsel, in each case, reasonably
satisfactory to the Collateral Agent and the applicable Funding
Agent, as the case may be.
SECTION 5. Representations and Warranties of USS and Seller; Further
Assurances. Each of USS and the Seller hereby represents and warrants to the
Collateral Agent, each Funding Agent and each Purchaser as follows:
A. Representations and Warranties. Each of the representations and warranties
made by it under each of the Transaction Documents to which it is a party are
true and correct as of the date hereof (unless stated to relate solely to an
earlier date, in which case such representations and warranties were true
and correct and correct as of such earlier date).
B. Enforceability. The execution and delivery by each of the Seller and the
Servicer of this Amendment, and the performance of each of its obligations
under this Amendment and the Agreement, as amended hereby, are within each of
its corporate powers and have been duly authorized by all necessary corporate
action on each of its parts. This Amendment and the Agreement, as amended
hereby, are each of the Seller's and the Servicer's valid and legally binding
obligations, enforceable in accordance with its terms; and
C. No Default. Both before and immediately after giving effect to this
Amendment and the transactions contemplated hereby, no Termination Event or
Unmatured Termination Event exists or shall exist.
D. Further Assurances. Each of the Seller and the Servicer hereby agree to
provide (or to cause to be provided) to the Collateral Agent and each Funding
Agent, a copy of all documents, agreements, instruments, certificates or other
records or receipts, if any, relating to the subject matter of this Amendment,
as the Collateral Agent or any Funding Agent may reasonably request.
SECTION 6. Miscellaneous.
A. This Amendment may be executed in any number of counterparts, and by the
different parties hereto on the same or separate counterparts, each of
which when so executed and delivered shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Delivery by facsimile or email of an executed signature page of this
Amendment shall be effective as delivery of an executed counterpart hereof.
B. The descriptive headings of the various sections of this Amendment are
inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
C. This Amendment may not be amended or otherwise modified except as provided
in the Agreement.
D. Any provision in this Amendment 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
E. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATION LAW).
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
UNITED STATES STEEL CORPORATION,
as initial Servicer
By: /s/ L. T. Brockway
______________________________
Name: L. T. Brockway
Title: Vice President & Treasurer
U. S. STEEL RECEIVABLES LLC, as
Seller
By: /s/ G. P. Schmidt
______________________________
Name: G. P. Schmidt
Title: Treasurer
LIBERTY STREET FUNDING LLC,
as a CP Conduit Purchaser
By: /s/ Jill A. Russo
______________________________
Name: Jill A. Russo
Title: Vice President
THE BANK OF NOVA SCOTIA, as a
Committed Purchaser for Liberty
Street Funding LLC
By: /s/ Darren Ward
_______________________________
Name: Darren Ward
Title: Director
THE BANK OF NOVA SCOTIA, as LC Bank
for the Purchaser Group for which
The Bank of Nova Scotia acts as
Funding Agent
By: /s/ Darren Ward
_______________________________
Name: Darren Ward
Title: Director
LC Sub-Commitment: $125,000,000
THE BANK OF NOVA SCOTIA, as Funding
Agent for Liberty Street Funding
LLC, as CP Conduit Purchaser and
The Bank of Nova Scotia, as
Committed Purchaser and as LC Bank
By: /s/ Darren Ward
_______________________________
Name: Darren Ward
Title: Director
Commitment for its Purchaser Group:
$275,000,000
MARKET STREET FUNDING LLC, as a CP
Conduit Purchaser
By: /s/ Doris J. Hearn
_______________________________
Name: Doris J. Hearn
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Committed Purchaser for Market
Street Funding LLC
By: /s/ Susan Dimmick
_______________________________
Name: Susan Dimmick
Title: Senior Vice
President
PNC BANK, NATIONAL ASSOCIATION, as
LC Bank for the Purchaser Group for
which PNC Bank, National
Association acts as Funding Agent
By: /s/ Susan Dimmick
_______________________________
Name: Susan Dimmick
Title: Senior Vice
President
LC Sub-Commitment: $125,000,000
PNC BANK, NATIONAL ASSOCIATION, as
Funding Agent for Market Street
Funding LLC, as CP Conduit
Purchaser and PNC Bank, National
Association, as Committed Purchaser
and LC Bank
By: /s/ Willam P. Falcon
_______________________________
Name: Willam P. Falcon
Title: Vice President
Commitment for its Purchaser Group:
$250,000,000
THE BANK OF NOVA SCOTIA,
as Collateral Agent
By: /s/ Darren Ward
________________________________
Name: Darren Ward
Title: Director
SCHEDULE I
SCHEDULE IV
SPECIAL OBLIGORS
Special Obligor Concentration Percentage
1. General Motors Corporation 10%
2. Sooner Pipe 6%
3. Whirlpool Corporation 6%
4. Ford Motor Company 6%
SCHEDULE II
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Accounts
1. PNC Bank, National 6800 (account number #11-
Association 3081-8577)
2. Mellon Bank, N.A. AT 40370
PI 360008
107-1214 (wire account)