EXHIBIT 10.4.12
AMENDMENT NO. 8 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
October 31, 1997
WCI Steel, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Gentlemen:
Congress Financial Corporation, a California corporation ("Congress")
and Bank America Business Credit, Inc., a Delaware corporation, as assignee
of, and together with Congress, individually and collectively, "Lenders") and
Congress Financial Corporation, as agent for Lenders (in such capacity,
"Agent") have entered into financing arrangements with WCI Steel, Inc., an
Ohio corporation ("WCI Steel"), pursuant to which Agent on behalf of Lenders
may make loans and advances and provide other financial accommodations to WCI
Steel as set forth in the Amended and Restated Loan and Security Agreement,
dated as of December 29, 1992, by and among Agent, Lenders and WCI Steel, as
amended and supplemented pursuant to Amendment No. 1 to Amended and Restated
Loan and Security Agreement, dated as of December 14, 1993, Amendment No. 2
to Amended and Restated Loan and Security Agreement, dated as of July 13,
1994, Amendment No. 3 to Amended and Restated Loan and Security Agreement,
dated as of March 28, 1995, Amendment No. 4 to Amended and Restated Loan and
Security Agreement, dated as of February 23, 1996, Amendment No. 5 to Amended
and Restated Loan and Security Agreement, dated as of March 8, 1996,
Amendment No. 6 to Amended and Restated Loan and Security Agreement, dated as
of June 17, 1996, and Amendment No. 7 to Loan and Security Agreement, dated
November 27, 1996 (as the same is amended and supplemented hereby or may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and the other Financing
Agreements (as such term is defined in the Loan Agreement).
WCI Steel and its subsidiaries have requested that Agent and each of
Lenders (a) consent to the formation of WCI Metallurgical (as hereinafter
defined), WCI Production (as hereinafter defined) and WCI Sales LP (as
hereinafter defined), (b) permit the transfer of existing receivables of WCI
Steel to WCI Sales LP on the date hereof, (c) permit intercompany sales of
inventory after the date hereof from WCI Steel to WCI Sales LP for resale to
Account Debtors, (d) include WCI Sales LP as a borrower under the Loan
Agreement, and (e) permit WCI Metallurgical and WCI Production to provide
certain sales and production services to WCI Steel and WCI Sales LP.
Agent and Lenders are willing to so consent, subject to the terms and
conditions contained herein. By this Amendment, Agent, Lenders and Borrower
desire and intend to evidence such consent and related amendments.
In consideration of the foregoing, the mutual agreements and covenants
contained herein, and other good and valuable consideration, the adequacy and
sufficiency of which is hereby acknowledged, Agent, Lenders and Borrower
agree as follows:
1. Definitions.
(a) Additional Definitions. As used herein, the following terms
shall have the respective meanings given to them below and the Loan Agreement
shall be deemed and is hereby amended to include, in addition and not in
limitation of, each of the following definitions:
(i) "WCI Metallurgical" shall mean WCI Steel Metallurgical
Services, Inc., an Ohio corporation, and its successors and assigns.
(ii) "WCI Production" shall mean WCI Steel Production Control
Services Inc., an Ohio corporation, and its successors and assigns.
(iii) "WCI Sales LP" shall mean WCI Steel Sales L.P., an Ohio
limited partnership, and its successors and assigns.
(iv) "WCI Sales LP Limited Partnership Agreement" shall mean
the Limited Partnership Agreement, dated October 2, 1997, between WCI
Metallurgical and WCI Production, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
(v) "WCI Steel" shall mean WCI Steel, Inc., an Ohio
corporation, and its successors and assigns.
(b) Amendment to Definition. All references to the term
"Borrower" or "Debtor" in the Loan Agreement or in any of the Financing
Agreements shall be deemed and each such reference is hereby amended to mean,
jointly and severally, individually and collectively, WCI Sales LP and WCI
Steel.
(c) Interpretation. For purposes of this Amendment, unless
otherwise defined herein, all terms used herein, including, but not limited
to, those terms used and/or defined in the recitals hereto, shall have the
respective meanings assigned thereto in the Loan Agreement.
2. Consents. Subject to the terms and conditions contained herein,
Agent and Lenders hereby consent to: (a) the formation of WCI Sales LP, WCI
Metallurgical and WCI Production, (b) the transfer as of the date hereof by
WCI Steel to WCI Sales LP of all of the existing Accounts of WCI Steel,
provided, that, such consent shall not be construed to release or terminate
the security interests and liens of Agent in such Accounts, which security
interests and liens of Agent shall continue and remain in full force and
effect with respect to such Accounts as so transferred and WCI Sales LP shall
acquire such Accounts subject to the security interests and liens of Agent,
(c) intercompany sales of Inventory after the date hereof by WCI Steel to WCI
Sales LP, provided, that, such consent shall not be construed to release or
terminate the security interests and liens of Agent in such Inventory, which
security interests and liens of Agent shall continue and remain in full force
and effect, and WCI Sales LP shall acquire such Inventory subject to the
security interests and liens of Agent, and (d) certain payments to WCI
Metallurgical and WCI Production in exchange for sales and production
services provided by each of them to WCI Steel and WCI Sales LP.
3. Assumption of Obligations.
(a) WCI Sales LP hereby expressly (i) assumes and agrees to be
directly liable to Agent and Lenders, jointly and severally with WCI Steel,
for all Obligations under, contained in, or arising out of the Loan Agreement
and the other Financing Agreements applicable to WCI Steel as a Borrower and
as applied to WCI Sales LP as a Borrower, (ii) agrees to perform, comply with
and be bound by all terms, conditions and covenants of the Loan Agreement and
the other Financing Agreements applicable to WCI Steel and as applied to WCI
Sales LP as a Borrower, with the same force and effect as if WCI Sales LP had
originally executed and been an original Borrower as a signatory to the Loan
Agreement and the other Financing Agreements, and (iii) agrees that Agent and
Lenders shall have all rights, remedies and interests, including security
interests in and to the Collateral granted pursuant to Section 5 hereof, the
Loan Agreement and the other Financing Agreements, with respect to WCI Sales
LP and its properties and assets with the same force and effect as Agent and
Lenders have with respect to WCI Steel and its assets and properties as if
WCI Sales LP had originally executed and had been an original Borrower as a
signatory to the Loan Agreement and the other Financing Agreements.
(b) WCI Steel and WCI Sales LP shall be liable for all amounts due
to Agent and Lenders under this Agreement, regardless of which of them
actually receives the Loans or other extensions of credit hereunder or the
amount of such Loans received or the manner in which Agent or any Lender
accounts for such Loans, Letter of Credit Accommodations or other extensions
of credit on its books and records. The Obligations with respect to Loans
made to WCI Steel or WCI Sales LP and the Obligations arising as a result of
the joint and several liability of WCI Steel or WCI Sales LP, with respect to
Loans made to either WCI Steel or WCI Sales LP, shall be separate and
distinct obligations, but all such other Obligations shall be primary
obligations of WCI Steel and WCI Sales LP. The Obligations arising as a
result of the joint and several liability of WCI Steel and WCI Sales LP with
respect to Loans, Letter of Credit Accommodations or other extensions of
credit made to the other shall, to the fullest extent permitted by law, be
unconditional irrespective of (i) the validity or enforceability, avoidance
or subordination of the Obligations of the other or of any promissory note or
other document evidencing all or any part of the Obligations of the other,
(ii) the absence of any attempt to collect the Obligations from the other
Borrower, or any other security therefor, or the absence of any other action
to enforce the same, (iii) the waiver, consent, extension, forbearance or
granting of any indulgence by Agent or any Lender with respect to any
provisions of any instrument evidencing the Obligations of the other
Borrower, or any part thereof, or any other agreement now or hereafter
executed by the other Borrower and delivered to Agent or any Lender, (iv) the
failure by Agent or any Lender to take any steps to perfect and maintain its
security interest in, or to preserve its rights and maintain its security or
collateral for the Obligations of the other Borrower, (v) the election of
Agent or any Lender in any proceeding instituted under the Bankruptcy Code,
of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any
borrowings or grant or a security interest by the other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the
disallowance of all or any portion of the claim(s) of Agent or any Lender for
the repayment of the Obligations of the other Borrower under Section 502 of
the Bankruptcy Code, or (viii) any other circumstances which might constitute
a legal or equitable discharge or defense of a guarantor or of the other
Borrower. With respect to the Obligations arising as a result of the joint
and several liability of WCI Steel and WCI Sales LP with respect to Loans,
Letter of Credit Accommodations or other extensions of credit made to the
other Borrower hereunder, each of WCI Steel and WCI Sales LP waives, until
the Obligations shall have been paid in full and this Agreement shall have
been terminated, any right to enforce any right of subrogation or any remedy
which Agent or any Lender now has or may hereafter have against WCI Steel and
WCI Sales LP, any endorser or any guarantor of all or any part of the
Obligations, and any benefit of, and any right to participate in, any
security or collateral given to Agent. Upon any Event of Default, Agent may
proceed directly and at once, without notice, against either WCI Steel or WCI
Sales LP to collect and recover the full amount, or any portion of the
Obligations, without first proceeding against the other Borrower or any other
Person, or against any security or collateral for the Obligations. Each of
WCI Steel and WCI Sales LP consents and agrees that Agent shall be under no
obligation to ▇▇▇▇▇▇▇▇ any assets in favor of WCI Steel and WCI Sales LP or
against or in payment of any or all of the Obligations.
4. Loans. Section 3.1(a) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"3.1 Loans.
(a) Subject to, and upon the terms and conditions contained
herein:
(i) At the request of WCI Sales LP, or at the request
of WCI Steel on behalf of WCI Sales LP, each of Lenders severally,
but not jointly, agrees to lend to WCI Sales LP and authorizes and
appoints Agent to make Loans to WCI Sales LP, for the account of
and as Agent for Lenders, in such amounts from time to time as Agent
shall determine, in its discretion, upon such request, of up to:
(A) xxxxxxxxxxxxxxxxx percent of the Net Amount of Eligible Accounts
of WCI Sales LP (or such greater or lesser percentage thereof as
Agent may determine from time to time), plus (B) sixty (60%) percent
of the Value of Eligible Inventory of WCI Sales LP taking into account
the elimination of intercompany profit (or such greater or lesser
percentage thereof as Agent may determine from time to time).
(ii) At the request of WCI Steel, each of Lenders
severally, but not jointly, agrees to lend to WCI Steel, and
authorizes and appoints Agent to make Loans to WCI Steel, for the
account of and as Agent for Lenders, in such amounts from time to
time as Agent shall determine in its discretion, upon such request,
of up to xxxxxxxxxxx percent of the Value of Eligible Inventory of
WCI Steel (or such greater or lesser Percentage thereof as Agent
may determine from time to time)."
5. Appointment of Agent for Requesting Loans and Receipt of Loans and
Statements.
(a) WCI Sales LP hereby irrevocably appoints and constitutes WCI
Steel as its agent to request and receive Loans and Letter of Credit
Accommodations pursuant to the Loan Agreement and the other Financing
Agreements from Agent and Lenders in the name or on behalf of WCI Sales LP.
Agent and Lenders may disburse the Loans to such bank account of WCI Steel or
otherwise make such Loans to WCI Sales LP and provide such Letter of Credit
Accommodations to WCI Sales LP as WCI Steel may designate or direct, without
notice to WCI Sales LP, any Obligor or any other person at any time obligated
on or in respect of the Obligations.
(b) WCI Steel hereby accepts the appointment by WCI Sales LP as
the agent of WCI Sales LP pursuant to Section 5(a) hereof. WCI Steel shall
ensure that the disbursements of any Loans to WCI Sales LP requested by or
paid to WCI Steel or the issuance of any Letter of Credit Accommodations for
WCI Sales LP shall be paid to or for the account of WCI Sales LP.
(c) WCI Sales LP hereby irrevocably appoints and constitutes WCI
Steel as its agent to receive statements of account and all other notices
from Agent and Lenders with respect to the Obligations or otherwise under or
in connection with the Loan Agreement and the other Financing Agreements.
(d) No purported termination of the appointment of WCI Steel as
agent as aforesaid shall be effective, except after ten (10) days prior
written notice to Agent.
6. Direct Grant of Security Interest. Without limiting the provisions
of Section 3(a) hereof, the Loan Agreement and the other Financing
Agreements, as collateral security for the prompt performance, payment and
performance when due of all of the Obligations of WCI Sales LP to each of
Agent and Lenders, WCI Sales LP hereby grants to each of Agent and Lenders, a
continuing security interest in, and lien upon, and right of setoff against,
and WCI Sales LP hereby pledges and assigns to each of Agent and Lenders, all
now owned and hereafter acquired and arising assets and properties of WCI
Sales LP, all of which shall be included in the definition of Collateral as
set forth in the Loan Agreement (which definition is hereby amended
accordingly), including, without limitation, the following:
(a) (i) all Accounts; (ii) all monies, securities and other
property and the proceeds thereof, now or hereafter held or received by, or
in transit to, Agent, Lenders or any Participant from or for WCI Sales LP,
whether for safekeeping, pledge, custody, transmission, collection or
otherwise, and all of WCI Sales LP's deposits (general or special), balances,
sums and credits with Agent, Lenders or any Participant at any time existing;
(iii) all right, title and interest, and all enforcement and other rights,
remedies, and security and liens, in, to and in respect of the Accounts and
other Collateral, including, without limitation, rights of stoppage in
transit, replevin, repossession, sequestration and reclamation and other
rights and remedies of an unpaid vendor, lienor or secured party, guaranties
or other contracts of suretyship with respect to the Accounts, deposits or
other security for the obligation of any Account Debtor, credit and other
insurance; (iv) all right, title and interest in, to and in respect of all
goods relating to Accounts, including, without limitation, all goods
described in invoices, documents, contracts or instruments with respect to,
or otherwise representing or evidencing, any Account or other Collateral,
including, without limitation, all returned, reclaimed or repossessed goods;
(v) all deposit accounts; and (vi) all other general intangibles of every
kind and description (other than trademarks and patents), including, without
limitation, (A) the interests of WCI Sales LP in any surety, insurance or
bonds, letters of credit or other guaranties and (B) claims and other choses
in action;
(b) all Inventory;
(c) all present and future books and records relating to any of
the above, including, without limitation, all ledgers, books of account,
records, tapes, cards, computer programs, computer disks or tape files,
computer printouts, computer runs, computer data and other computer prepared
information in the possession or control of WCI Sales LP, any computer
service bureau or other third person; and
(d) all products and proceeds of the foregoing, in any form,
including, without limitation, any insurance proceeds and any claims against
third persons for loss or damage to or destruction of any or all of the
foregoing.
Notwithstanding anything to the contrary set forth in this Section 6 hereof,
the Collateral shall not include the Equipment, the Real Property or the
other assets of WCI Sales LP described on Exhibit M hereto and the Collateral
shall not include proceeds of business interruption insurance.
7. Loans, Investments, Guarantees. Section 7.5 of the Loan Agreement
is hereby amended by adding a new Section 7.5(k) as follows:
"(k) the guarantees by WCI Steel, WCI Sales LP,
WCI Production and WCI Metallurgical in favor of
Lenders and Agent."
8. Exhibits. Exhibits B, C, D, J, and L to the Loan Agreement are
hereby amended to include, in addition and not in limitation, the additional
information set forth on the Exhibits B, C, D, J and L attached hereto.
9. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by WCI Steel, WCI Sales LP, WCI Production, WCI Metallurgical and Niles
to Agent and/or Lenders pursuant to the other Financing Agreements, each of
WCI Steel, WCI Sales LP, WCI Production, WCI Metallurgical and Niles hereby
represents, warrants and covenants with and to Agent and Lenders as follows
(which representations, warranties and covenants are continuing and shall
survive the execution and delivery hereof and shall be incorporated into and
made a part of the Financing Agreements):
(a) This Amendment and each other agreement or instrument to be
executed and delivered by each of WCI Steel, WCI Sales LP, WCI Production,
WCI Metallurgical and Niles hereunder have been duly authorized, executed and
delivered by all necessary action on the part of each of WCI Steel, WCI Sales
LP, WCI Production, WCI Metallurgical and Niles which is a party hereto and
thereto and, if necessary, their respective stockholders, and is in full
force and effect as of the date hereof, as the case may be, and the
agreements and obligations of each of WCI Steel, WCI Sales LP, WCI
Production, WCI Metallurgical and Niles, as the case may be, contained herein
and therein constitute legal, valid and binding obligations of each of WCI
Steel, WCI Sales LP, WCI Production, WCI Metallurgical and Niles, as the case
may be, enforceable against them in accordance with their terms.
(b) All of the outstanding shares of capital stock of each of WCI
Production and WCI Metallurgical have been duly authorized, validly issued
and are fully paid and non-assessable, free and clear of all claims, liens,
pledges and encumbrances of any kind. WCI Steel is the beneficial and direct
owner of record of one hundred (100%) percent of the issued and outstanding
shares of capital stock of each of WCI Production Services and WCI
Metallurgical.
(c) No action of, or filing with, or consent of any governmental
or public body or authority, other than the filing of UCC financing
statements, and no approval or consent of any other party, is required to
authorize, or is otherwise required in connection with, the execution,
delivery and performance of this Amendment.
(d) All of the representations and warranties set forth in the
Loan Agreement and the other Financing Agreements, each as amended hereby,
are true and correct in all material respects on and as of the date hereof as
if made on the date hereof, except as affected by transactions expressly
contemplated or permitted by this Amendment and except to the extent any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date.
(e) As of the date hereof, and after giving effect to the
provisions of this Amendment, no Event of Default, and no condition or event
which, with the giving of notice or lapse of time, or both, would constitute
an Event of Default, exists or has occurred and is continuing.
(f) WCI Metallurgical is an Ohio corporation, duly organized and
validly existing in good standing under the laws of the State of Ohio. WCI
Production is an Ohio corporation, duly organized and validly existing in
good standing under the laws of the State of Ohio. The sole general partner
of WCI Sales LP is and shall be WCI Production and the sole limited partner
of WCI Sales LP is and shall be WCI Metallurgical. WCI Sales LP is an Ohio
limited partnership, duly formed and validly existing in good standing under
the laws of the State of Ohio. Each of WCI Sales LP, WCI Metallurgical and
WCI Production (i) is duly licensed or qualified to do business as a foreign
corporation and is in good standing in each of the jurisdictions set forth in
Exhibit B annexed hereto, which are the only jurisdictions where the nature
of the properties owned or licensed or the nature of the business makes such
licensing or qualification to do business necessary, and (ii) has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted and will be conducted in
the future.
(g) The WCI Sales LP Limited Partnership Agreement has been duly
and validly authorized, executed and delivered and constitutes a valid
binding agreement enforceable in accordance with its terms.
(h) The assets and properties of WCI Sales LP, WCI Production and
WCI Metallurgical are owned by them, free and clear of all security
interests, liens and encumbrances of any kind, nature or description, except
those security interests granted pursuant hereto or the Loan Agreement in
favor of Agent and Lenders and except for Liens (if any) permitted under
Section 7.4 of the Loan Agreement or the other Financing Agreements. WCI
Sales LP, WCI Production and WCI Metallurgical do not, and shall not, own any
Equipment or Real Property having a value in the aggregate of more than
$1,000,000 and the only other assets of WCI Sales LP are and shall be
Accounts and Inventory. The only business of WCI Sales LP is, and shall be,
the resale to third party customers of Inventory sold by WCI Steel to WCI
Sales LP.
(i) All sales of Inventory by WCI Steel to WCI Sales LP after the
date hereof shall be in the ordinary course of and pursuant to the reasonable
requirements of its business and upon fair and reasonable terms no less
favorable to WCI Steel than it would obtain in a comparable arm's length
transaction with a person other than an Affiliate (except that the price of
such Inventory so sold by WCI Steel to WCI Sales LP may be between
xxxxxxxxxxxx percent and xxxxxxxxxxxxxxxxxx percent of the market value of
such Inventory based on the sales price to the ultimate third party
customer). All services provided by WCI Production to WCI Steel and WCI
Steel LP for planning steel production and all services provided by WCI
Metallurgical to WCI Steel and WCI Sales LP for making steel and furnishing
services to customers of WCI Sales LP shall be in the ordinary course of and
pursuant to the reasonable requirements of the business of WCI Steel and WCI
Sales LP and upon fair and reasonable terms no less favorable to each of WCI
Steel and WCI Sales LP than it would obtain in a comparable arm's length
transaction with a person other than an Affiliate.
(j) Within twenty (20) days after the date hereof, WCI Steel and
WCI Sales LP shall obtain and deliver such amendment to the existing Blocked
Account arrangements as Agent shall require, in form and substance
satisfactory to Agent, to reflect the transactions provided for herein, duly
executed and delivered by the banks at which such Blocked Accounts are
maintained by Borrower.
10. Conditions Precedent. The effectiveness of the consents, waiver
and other terms and conditions contained herein shall be subject to the
receipt by Agent of each of the following, in form and substance satisfactory
to Agent:
(a) the Guarantee by WCI Sales LP, WCI Metallurgical and WCI
Production in favor of Lenders and Agent with respect to the Obligations of
WCI Steel to Lenders and Agent;
(b) the Guarantee by WCI Steel, Niles, WCI Metallurgical and WCI
Production in favor of Lenders and Agent with respect to the Obligations of
WCI Sales LP to Lenders and Agent;
(c) the Security Agreement by WCI Metallurgical in favor of
Lenders and Agent;
(d) the Security Agreement by WCI Production in favor of Lenders
and Agent;
(e) such UCC financing statements and other documents and
instruments by WCI Sales LP, WCI Production and WCI Metallurgical which
Lenders in their sole discretion have determined are necessary to perfect the
security interests of Agent and Lenders in all assets now or hereafter owned
by WCI Sales LP, WCI Production and WCI Metallurgical;
(f) the Certificate of Incorporation, and all amendments thereto,
of each of WCI Production and WCI Metallurgical certified by the Secretary of
State of its jurisdiction of incorporation as of the most recent practicable
date certifying that each of the foregoing documents remains in full force
and effect and has not been modified or amended, except as described therein,
together with a copy of the By-Laws of each of WCI Production and WCI
Metallurgical, certified by the secretary of each of WCI Production and WCI
Metallurgical, and a certificate from the secretary of each of WCI
Metallurgical and WCI Production dated the date hereof certifying that each
of the foregoing documents remains in full force and effect and has not been
modified or amended, except as described therein;
(g) the Certificate of Limited Partnership, and all amendments
thereto, of WCI Sales LP certified by the Secretary of State of Ohio,
together with the WCI Sales Limited Partnership Agreement and a certificate
from the managing partner of WCI Sales LP dated the date hereof certifying
that each of the foregoing documents remains in full force and effect and has
not been modified or amended, except as described therein;
(h) evidence, as of the most recent practicable date, that each of
WCI Sales LP, WCI Production and WCI Metallurgical is duly qualified and in
good standing in each jurisdiction set forth in Exhibit B hereto;
(i) a Secretary's Certificate of Directors' Resolutions with
Shareholder's Consent evidencing the adoption and existence of corporate
resolutions approving the execution, delivery and performance by each of WCI
Sales L.P., WCI Production and WCI Metallurgical of this Amendment and the
agreements, documents and instruments to be delivered pursuant to this
Amendment, together with such opinions of counsel to with respect thereto,
addressed to Lenders and Agent as Lenders shall reasonably require.
11. Additional Events of Default. The parties hereto acknowledge,
confirm and agree that the failure of Borrower to comply with the covenants,
conditions and agreements contained herein shall constitute an Event of
Default under the Financing Agreements (subject to the applicable cure
period, if any, with respect thereto provided for in the Loan Agreement as in
effect on the date hereof).
12. Effect of this Amendment. Except as modified pursuant hereto, no
other waivers, changes or modifications to the Financing Agreements are
intended or implied, and in all other respects, the Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as
of the effective date hereof. To the extent of conflict between the terms of
this Amendment and the other Financing Agreements, the terms of this
Amendment shall control.
13. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional actions as may be
necessary to effectuate the provisions and purposes of this Amendment.
14. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in
accordance with the laws of the State of New York.
15. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns. Any acknowledgment or consent contained herein shall not be
construed to constitute a consent to any other or further action by Borrower,
WCI Metallurgical, WCI Production, WCI Sales LP or Niles or to entitle
Borrower or any of such persons to any other consent. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
16. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one
and the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed
by each of the parties thereto.
[REMAINDER OF PAGE INTENTIONALLY OMITTED]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the day and
year first above written.
Very truly yours,
WCI STEEL, INC.
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇
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Title: Assistant Secretary
WCI STEEL SALES L.P.
By: WCI STEEL PRODUCTION CONTROL
SERVICES INC., as its general partner
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Secretary
ACCEPTED AND AGREED:
CONGRESS FINANCIAL CORPORATION,
individually and as Agent
By:/S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: First Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ACKNOWLEDGED AND CONSENTED TO:
NILES PROPERTIES, INC.
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Treasurer
WCI STEEL PRODUCTION CONTROL SERVICES INC.
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------
Title: Secretary
WCI STEEL METALLURGICAL SERVICES INC.
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Secretary
EXHIBIT B
WCI Steel Metallurgical Services. Inc.
Incorporated in Ohio. Qualified as a foreign corporation in:
Alabama
California
Colorado
Connecticut
Georgia
Illinois
Indiana
Kentucky
Louisiana
Michigan
North Carolina
New Jersey
New York
Pennsylvania
South Carolina
Tennessee
Texas
Wisconsin
West Virginia
WCI Steel Production Services. Inc.
Incorporated in Ohio. Qualified as a foreign corporation in:
Michigan
Pennsylvania
WCI Steel Sales Limited Partnership
A limited partnership formed under the laws of Ohio. Qualified to do
business in:
Michigan
EXHIBIT C
WCI Steel Metallurgical Services, Inc.
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WCI Steel Production Services, Inc.
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WCI Steel Sales L.P.
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EXHIBIT D
Location of Collateral
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EXHIBIT J
Corporate Names; Tradenames; Prior Transactions
None.
Schedule 4.3
Existing Liens
None.
Permitted Liens includes:
(i) mechanics, materialmen, warehousemen and other like statutory
liens arising in the ordinary course of the Guarantor's business to the
extent (a) such liens secure Obligations which are not overdue or (b) until
foreclosure of similar proceedings shall have been commenced, such liens
secure Obligations relating to claims or liabilities which are (1) fully
insured and being defended at the sole cost and expense and the sole risk of
the insurer or (2) being contested in good faith by appropriate proceedings
diligently pursued and available to the Guarantor which proceedings have the
effect of preventing the forfeiture or sale of the property or asset subject
to such lien and are adequately escrowed for or reserved;
(ii) liens for taxes not yet due and payable or liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP,
(iii) liens (other than any lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (a) in connection with
liability insurance, workers' compensation, unemployment insurance and other
types of social security or (b) to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, contracts,
performance and return-of-money bonds and other similar obligations incurred
in the ordinary course of business;
(iv) leases or subleases granted to third persons not interfering
with the ordinary course of business of the Guarantor;
(v) any attachment or judgment lien arising from a judgment not
giving rise to an Event of Default, or an act, condition or event which with
notice or passage of time or both would constitute an Event of Default so
long as such lien, if encumbering Collateral, has not attached to such
Collateral for more than forty-five (45) days and so long as no enforcement
action has commenced with respect to such Collateral;
(vi) easements, rights-of-way, restrictions, encroachments,
licenses, zoning restrictions and other similar charges or encumbrances, in
each cases not interfering in any material respect with the business of the
Guarantor;
(vii) non-consensual liens which may arise or be created under
ERISA and under environmental laws that are being contested in good faith and
as to which adequate reserves have been established to the extent required by
GAAP and secure obligations that are not reasonably likely to have a Material
Adverse Effect, and which are not reasonably likely to adversely affect the
Agent's rights with respect to the Collateral or the value thereof; and
(viii) purchase money mortgages or other purchase money liens or
security interests up to $500,000 upon any specified fixed assets hereafter
acquired or liens or security interests existing on any such future fixed
assets at the time of acquisition thereof and including in any event any
capital or finance leases; provided that: (a) no such purchase money lien or
security interest (or capital or finance lease, as the case may be) with
respect to specific future fixed assets or as refinanced shall extend to or
cover any other property other than the specific fixed assets so acquired, or
acquired subject to such lien or security interest (or lease) and the
proceeds thereof; (b) such lien or security interest only secures the
obligation to pay the purchase price of such specific fixed assets (or the
obligations under the capital or finance lease); (c) the principal amount
secured thereby shall not exceed one hundred percent (100%) of the cost of
the fixed assets so acquired; and (d) no Event of Default, or act, condition
or event which with notice or passage of time or both would constitute an
Event of Default, shall exist or have occurred and be continuing.
Schedule 4.7
Bank Accounts for WCI Production Control Services. Inc.
Bank Account Number Purpose/Type
Corestates xxxx-xxxx Account Payable
Schedule 4.7
Bank Accounts for WCI Metallurgical Services. Inc.
Bank Account Number Purpose/Type
Corestates xxxx-xxxx Account Payable
