Exhibit 10.6
COLLATERAL ACCESS AGREEMENT
COLLATERAL ACCESS AGREEMENT (the "Agreement"), dated as of May 1,
2006, by and among Citicorp, USA, Inc. as administrative agent (in such capacity
and together with its successors and assigns in such capacity, the
"Administrative Agent") for the Credit Agreement Lenders (as defined below), The
Bank of New York Trust Company, N.A., as trustee under the Collateral Trust
Agreement (in such capacity and together with its successors and assigns in such
capacity, the "Collateral Trustee") and Wilmington Trust Company, as trustee
under the Indenture (in such capacity and together with its successors and
assigns in such capacity, the "Indenture Trustee"). Terms used herein but not
otherwise defined herein shall have the meaning given them in the Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, dated as of May 1, 2006 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among WCI Steel Acquisition, Inc. (the
"Company"), the lenders and issuers party thereto and the Administrative Agent,
the lenders and the issuers thereto have severally agreed to make extensions of
credit to the Company upon the terms and subject to the conditions set forth
therein; and
WHEREAS, the Company, as grantor, the other grantors party thereto
from time to time and the Administrative Agent are parties to that certain
Pledge and Security Agreement, dated as of May 1, 2006 (the "Security
Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
1. DEFINED TERMS.
"Credit Agreement Collateral" has the meaning given to it in the
Security Agreement.
"Credit Agreement Lenders" means the lenders and Issuers under the
Credit Agreement.
"Indenture Collateral" has the meaning given to it in the Security
Agreement.
"Indenture Collateral Secured Parties" means the Collateral Trustee
and Indenture Trustee.
"Secured Parties" means the Administrative Agent, the Collateral
Trustee and the Indenture Trustee.
2. NOTICES OF DEFAULT, FORECLOSURE ETC.
(a) Each Indenture Collateral Secured Party agrees to use its
reasonable efforts to furnish to the Administrative Agent (at the same time it
is sent to Company or any other Loan Party) a copy of each notice of foreclosure
as such Indenture Collateral Secured Party giving the notice shall send to the
Company or any other Loan Party.
(b) Each Indenture Collateral Secured Party agrees that, not less than
10 days prior to the exercise of any of its foreclosure and collection rights or
remedies with respect to any of its respective Indenture Collateral, it shall
give the Administrative Agent written notice thereof; provided, however, that
the failure to give such notice shall not affect the validity of this Agreement
or create a cause of action against the party failing to give such notice or
create any claim or right on behalf of any third party. The receipt of such
notice shall not give the recipient any obligation to cure any default.
3. ACCESS TO PREMISES.
Subject to the provisions in Section 5:
(a) In the event that either of the Indenture Collateral Secured
Parties shall acquire title to, or possession and control of, any of the
Indenture Collateral, whether through foreclosure, deed in lieu, or otherwise,
such Indenture Collateral Secured Party agrees that if an Event of Default (as
defined in the Credit Agreement) has occurred and is continuing and, as a
result, the Administrative Agent undertakes to enforce its rights in the Credit
Agreement Collateral under the Credit Agreement and the Security Agreement, such
Indenture Collateral Secured Party will cooperate with the Administrative Agent
in its efforts to assemble all of the Credit Agreement Collateral located on or
in such Indenture Collateral and will permit the Administrative Agent (at the
sole cost, reasonable expense and liability of the Administrative Agent,
including, without limitation, any current rent payable to lessors of leased
Indenture Collateral used or occupied by the Administrative Agent) to enter any
real property that is Indenture Collateral and use the Indenture Collateral, to
the extent necessary to complete the manufacture of inventory constituting
Credit Agreement Collateral, collect proceeds constituting Credit Agreement
Collateral and repossess, remove, sell or otherwise dispose of Credit Agreement
Collateral within a reasonable time not to exceed 45 days after delivery by such
Indenture Collateral Secured Party of notice to the Administrative Agent that it
has located a bona fide purchaser for all or any portion of the Indenture
Collateral.
(b) If any injunction or stay is issued (including an automatic stay
due to a bankruptcy proceeding) that prohibits the Administrative Agent from
entering the premises, using the Indenture Collateral or removing the Credit
Agreement Collateral, commencement of the 45-day period described in Section
3(a) above shall be deferred until such injunction or stay is lifted or removed.
(c) Following the expiration of the period described in Section 3(a)
above, the Administrative Agent may, at its option, continue to occupy or use
the Indenture Collateral for up to an additional 15 days; provided, however,
that such continued occupancy or use shall not delay the proposed closing date
for such sale, subject to the purchaser agreeing to allow the Administrative
Agent to continue to occupy or use the Indenture Collateral as aforesaid until
the expiration of such period on terms which shall be mutually and reasonably
acceptable to such purchaser, such Indenture Collateral Secured Party and the
Administrative Agent.
2
4. TERM. This Agreement shall remain in full force and effect until
all of the obligations secured by the Indenture Collateral shall have been paid
in full or all of the obligations secured by the Credit Agreement Collateral
shall have been paid in full and commitments of Credit Agreement Lenders
pursuant to the Credit Agreement shall have been terminated. This Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of such secured obligations is rescinded or must
otherwise be returned by any Secured Party or Credit Agreement Lender upon the
insolvency, bankruptcy or reorganization of any Loan Party or otherwise, all as
though such payment had not been made. This is a continuing agreement and Credit
Agreement Lenders may continue to extend credit or other financial
accommodations and loan monies to or for the benefit of the Company, on the
faith hereof, under the Credit Agreement or otherwise, without notice to
Indenture Collateral Secured Parties.
5. RESERVATION OF SECURITY INTERESTS AS AGAINST THIRD PARTIES. Nothing
contained in this Agreement is intended to affect or limit in any way the
security interests and/or liens each of the Secured Parties has in or on any or
all of the property and assets of any Loan Party or third party, whether
tangible or intangible, insofar as any Loan Party and third parties are
concerned. The Secured Parties specifically reserve all respective security
interests and/or liens and rights to assert such security interests and/or liens
as against the Loan Parties and third parties.
6. INCONSISTENT PROVISIONS. If any provision of this Agreement shall
be inconsistent with, or contrary to, any provisions in the Indenture, the
Collateral Trust Agreement, the Security Agreement or the Intercreditor
Agreement or any other instrument or agreement delivered in connection with the
transactions contemplated thereby, the applicable provision in this Agreement
shall be controlling and shall supersede such inconsistent provision to the
extent necessary to give full effect to all provisions contained in this
Agreement.
7. SEVERABILITY OF PROVISIONS. Any provision of this Agreement that is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such unenforceability, without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
8. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing or by telecopy and
shall be deemed to have been duly given or made when delivered by hand, or when
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
transmitted, transmission confirmed, addressed to the parties hereto at their
respective addresses set forth with their signatures hereto or to such other
address as may be hereafter notified by the respective parties hereto. Each
party hereto further agrees that any notice hereunder may be given on behalf of
such party by legal counsel to such party.
9. NO THIRD PARTY BENEFICIARIES. All undertakings, agreements,
representations and warranties contained in this Agreement are solely for the
benefit of the Secured Parties and there are no other parties (including,
without limitation, the Loan Parties) who are intended to be benefited in any
way by this Agreement. The existence of this Agreement shall not commit or
obligate any Secured Party to make loans or extend credit to the Loan Parties.
10. SUCCESSORS AND ASSIGNS; TRANSFER OF RIGHTS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of each Secured Party and its respective successors and assigns.
3
(b) Each Indenture Collateral Secured Party agrees that if such
Secured Party transfers its rights and interests under the Indenture, the
Collateral Trust Agreement or the Intercreditor Agreement (as applicable), or
any portion thereof, it will, prior to the closing of such transfer, provide the
transferee with a copy of this Agreement and each transferee of any such rights
and interests shall take such rights and interests or part thereof subject to
the provisions of this Agreement and to any notice given or other action taken
hereunder prior to the receipt by the Administrative Agent of notice of such
transfer.
(c) Promptly after the closing of any transfer of any such rights and
interests held by it, each Indenture Collateral Secured Party shall notify the
Administrative Agent of such transfer and the Administrative Agent shall be
entitled to assume conclusively that no Secured Party has transferred any rights
and interests under the Indenture, the Collateral Trust Agreement or the
Intercreditor Agreement Credit Agreement unless and until such notice is
received.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which shall
constitute but one agreement.
12. WAIVERS AND AMENDMENTS.
(a) Subject to the requirements of this Agreement, each Secured Party
may exchange, sell, release, surrender or otherwise deal with any or all of its
Collateral, all without in any way compromising or affecting this Agreement.
(b) All modifications, amendments and waivers of this Agreement must
be in writing and duly executed by an authorized officer of each party hereto to
be binding and enforceable.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York. This Agreement is solely for the benefit of the parties
hereto and their respective successors and assigns.
14. CONSENT TO JURISDICTION. The parties hereto hereby consent to the
exclusive jurisdiction of any State or Federal Court located within New York
County, State of New York, and irrevocably agree that, subject to the Indenture
Collateral Secured Parties' or the Administrative Agent's election, all actions
or proceedings relating to this agreement shall be litigated in such courts.
Each party hereto accepts for and in connection with its properties, generally
and unconditionally, in any such actions or proceedings the exclusive
jurisdiction of the aforesaid courts and waives any defense of forum non
conveniens, and irrevocably agrees to be bound by any judgment rendered thereby
in connection with this Agreement, with any judgment subject to rights of appeal
in the jurisdictions set forth above.
15. JURY TRIAL WAIVER. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT
MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.
16. AUTHORITY. Each of the parties represents and warrants to all
other parties hereto that the execution, delivery and performance by or on
behalf of such party to this Agreement has been duly authorized by all necessary
action, corporate or otherwise, does not violate any provision of law,
governmental regulation, or any agreement or instrument by which such party is
bound, and requires no governmental or other consent that has not been obtained
and is not in full force and effect.
4
17. HEADINGS. The section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
18. SPECIFIC PERFORMANCE. Each of the Administrative Agent and the
Indenture Collateral Secured Parties may demand specific performance of this
Agreement. Each of the Administrative Agent and the Indenture Collateral Secured
Parties hereby irrevocably waives any defense based on the adequacy of a remedy
at law and any other defense which might be asserted to bar the remedy of
specific performance in any action which may be brought by the Indenture
Collateral Secured Parties or the Administrative Agent, respectively.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their proper and duly authorized officers as of the day and
year first above written.
[SIGNATURE PAGES FOLLOW]
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their proper and duly authorized officers as of the day and
year first above written.
CITICORP, USA, INC.,
as Administrative Agent
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: Director/Vice President
ADDRESS FOR NOTICES:
CITICORP USA, INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx
with a copy to:
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxxx.xxxxxxxx@xxxx.xxx
[Signature Page to Collateral Access Agreement]
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Collateral Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ADDRESS FOR NOTICES:
The Bank of New York Trust Company, N.A.
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
[Signature Page to Collateral Access Agreement]
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administrator
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Collateral Access Agreement]
WCI STEEL ACQUISITION, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Address for Notices:
WCI Steel Acquisition, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
E-Mail Address: xxxxxxx@xxxxxxxx.xxx
9
WCI STEEL METALLURGICAL SERVICES ACQUISITION, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Address for Notices:
WCI Steel Metallurgical Services Acquisition, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
E-Mail Address: xxxxxxx@xxxxxxxx.xxx
10
WCI STEEL PRODUCTION CONTROL SERVICES
ACQUISITION, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Address for Notices:
WCI Steel Production Control Services
Acquisition, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
E-Mail Address: xxxxxxx@xxxxxxxx.xxx
11
YOUNGSTOWN SINTER ACQUISITION COMPANY
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Address for Notices:
Youngstown Sinter Acquisition Company
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
E-Mail Address: xxxxxxx@xxxxxxxx.xxx
12
WCI STEEL SALES ACQUISITION, L.P.
By: WCI Steel Production Control Services
Acquisition, Inc., its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Address for Notices:
WCI Steel Sales Acquisition, L.P.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
E-Mail Address: xxxxxxx@xxxxxxxx.xxx
13
