Exhibit 10.11(a)
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AMENDMENT NO. 1
dated as of November 17, 1995
to PURCHASE AND SERVICING AGREEMENT
dated as of December 1, 1994
among
AK STEEL CORPORATION,
as Originator and Servicer,
AK STEEL RECEIVABLES INC.,
as Transferor
The Purchasers Party Hereto
and
PNC BANK, OHIO, NATIONAL ASSOCIATION,
as L/C Issuing Bank, as lender under Swing Line Advances,
and as Agent for the Purchasers
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This AMENDMENT NO. 1 TO PURCHASE AND SERVICING AGREEMENT (the
"Amendment"), dated as of November 17, 1995, is made among AK STEEL CORPORATION
("AK Steel"), as Originator and Servicer, AK STEEL RECEIVABLES INC. ("AKR"), as
Transferor, the Purchasers party hereto, and PNC BANK, OHIO, NATIONAL
ASSOCIATION ("PNC"), as L/C Issuing Bank, as lender under Swing Line Advances,
and Agent for the Purchasers (the "Agent").
BACKGROUND
A. AK Steel, AKR, the Purchasers party thereto, PNC and the Agent
(the "Parties") have entered into the Purchase and Servicing Agreement dated as
of December 1, 1994 (the "Purchase and Servicing Agreement"), pursuant to which
AKR agreed to sell, and the Purchasers agreed to purchase, Undivided Fractional
Interests in certain Transferor Receivables and related Transferor Assets
originated by AK Steel;
B. The Parties wish to amend the Purchase and Servicing Agreement
in order to extend the Amortization Date as provided below.
NOW, THEREFORE, the Parties hereby agree as to the following:
SECTION 1. Definitions. Except as otherwise defined herein,
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capitalized terms shall have the meaning set forth in the Purchase and Servicing
Agreement.
SECTION 2. Certain Amendments.
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(a) Section 1.01 of the Purchase and Servicing Agreement is
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amended to change the definition of "Amortization Date" to read in full
as follows:
""Amortization Date" shall mean December 1, 2000, or, if earlier, the
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date specified as the Amortization Date pursuant to Section 10.01
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following the occurrence of an Early Amortization Event or by the
Transferor pursuant to Section 15.01."
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(b) Section 17.01(a) of the Purchase and Servicing Agreement is
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amended to change clause (ii) of the proviso thereto to read as follows:
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"(ii) change the definition of or the manner of calculating the
Purchased Interest or the Undivided Fractional Interests or any
Purchaser's interest therein or such
Purchaser's Commitment, or extend the scheduled Amortization Date beyond
December 1, 2000, in each case without the consent of each affected
Purchaser."
SECTION 3. Representations and Warranties. Each of AK Steel
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and AKR represents and warrants to the Agent and each Purchaser that:
(a) the execution and delivery by it of this Amendment, and the
performance of its obligations under the Purchase and Servicing
Agreement as modified by this Amendment, are within its corporate
powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental and other consents and
approvals, and do not and will not contravene or conflict with or
violate any Requirements of Law applicable to AK Steel or the Transferor
or their respective property or conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture,
contract, agreement, mortgage deed of trust or other instrument to which
AK Steel or the Transferor is a party or by which either of them or
their properties are bound,
(b) this Amendment has been duly executed and delivered by it, and
the Purchase and Servicing Agreement, as amended hereby, is its legal,
valid and binding obligation, enforceable against it in accordance with
its terms,
(c) the representations and warranties made by it in the Transaction
Documents are true and correct as of the date hereof as though made on
the date hereof, except to the extent that they specifically relate to
an earlier date, and
(d) after giving effect to this Amendment, no Early Amortization
Event or Potential Early Amortization Event shall exist.
SECTION 4. Effectiveness. This Agreement will become effective
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on the date when the Agent shall have received the following:
(a) Counterparts of this Amendment executed by each Party;
(b) Certified resolutions of the Board of Directors of each of AK
Steel and AKR authorizing execution, delivery and performance of this
Amendment; and
2
(c) An opinion of Xxxxxxx X. Xxxxxxx, counsel to AK Steel, in the
form set forth in Exhibit A hereto.
SECTION 5. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF OHIO.
(b) This Amendment may be executed in any number of counterparts
and by the different Parties in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which
together shall constitute one and the same agreement.
(c) Any reference to the Purchase and Servicing Agreement
contained in any notice, request, certificate or other document executed
concurrently herewith or after the date hereof shall be deemed to be a
reference to the Purchase and Servicing Agreement as amended hereby.
Except as expressly modified hereby, the Transaction Documents hereby
are ratified and confirmed by AK Steel and AKR, and remain in full force
and effect.
IN WITNESS WHEREOF, the Parties have caused their duly
authorized officers to execute this Amendment as of the day and year first above
written.
AK STEEL CORPORATION,
as Originator and Servicer
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President and Treasurer
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AK STEEL RECEIVABLES INC.,
as Transferor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President and CFO
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3
PNC BANK, OHIO, NATIONAL ASSOCIATION
as L/C Issuing Ban, as lender under Swing Line
Advances, and as Agent for the Purchasers
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Senior Vice President
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NBD BANK, N.A., as a Purchaser
By: /s/ Xxxxxxx X. Lease
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Name: Xxxxxxx X. Lease
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Title: Vice President
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COMERICA BANK, as a Purchaser
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
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Title: Vice President
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SOCIETY NATIONAL BANK, as a Purchaser
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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4
THE FIFTH THIRD BANK, as a Purchaser
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Vice President
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STAR BANK, NATIONAL ASSOCIATION, as a Purchaser
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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5
Exhibit A
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November 17, 1995
To the Persons Listed
on the Attached Schedule I
Gentlemen and Ladies:
I am Vice President, General Counsel and Secretary to AK Steel Corporation, a
Delaware corporation ("AK Steel"), and Secretary to and counsel for AK Steel
Receivables Inc., a Delaware corporation ("AKR") (together, the "Companies" and
each individually, a "Company"). As such, I am generally familiar with the
affairs, records, documents and obligations of the Companies. I am also familiar
with the documents listed on Schedule II hereto, each dated December 1, 1994
unless otherwise noted, and any other documents executed and delivered in
connection therewith (the "Transaction Documents"). Except as otherwise herein
defined, terms used herein are as defined in the Purchase and Servicing
Agreement, as amended by the Amendment. This opinion is rendered pursuant to
Section 4(c) of the Amendment.
In connection with this opinion, I have examined copies of the Transaction
Documents. In addition, I have examined the originals, or photostatic or
certified copies, of such records of the Companies, certificates of public
officials and such other agreements, instruments and documents as I have deemed
relevant and necessary as the basis for the opinions set forth below. In such
examination, I have assumed the genuineness of all signatures (other than
signatures of individuals signing on behalf of the Companies), the authenticity
of all documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified or photostatic copies
and the authenticity of the originals of such copies and have relied, as to
matters of fact, upon certificates of public officials and statements delivered
or made to me by representatives of the Companies.
I have also assumed, in giving the opinions expressed herein,
(I) That the parties to the Amendment, other than the Companies,
have full power, authority and legal right under their
respective articles of incorporation or certificates of
incorporation, as applicable, their respective instruments of
governance and organization, and the laws of the respective
jurisdictions in which they were incorporated or otherwise
organized to execute and deliver and to perform and observe the
provisions of such Amendment; and
(II) The accuracy and completeness of all records of the Companies
that I have examined.
Based upon my examination as described above and subject to the assumptions and
qualifications stated, I am of the opinion that:
1. The execution, delivery and performance by each Company of, and
the consummation by each Company of the Transactions
contemplated by, the Amendment do not and will not (a) violate
the Certificate of Incorporation or other organizational
documents of such company, (b) violate any law, rule or
regulation applicable to such Company, (c) violate any order,
writ, injunction or decree known to me after due inquiry of any
Governmental Authority applicable to such Company, or (d) result
in a breach of, constitute a default under, require any consent
under, or result in the acceleration or required prepayment on
any indebtedness pursuant to the terms of, any agreement or
instrument known to me after due inquiry to which such Company
is a party or by which it is bound or to which it is subject
(except for consents that have already been obtained), or (e)
except as contemplated by the Transaction Documents, result in
the creation or imposition of any Lien upon any property of such
Company pursuant to the terms of any such agreement or
instrument.
2. There is no pending or, to the best of my knowledge, threatened
action, suit, proceeding or claim before any Governmental
Authority, or any order, judgment or award by any Governmental
Authority against either of the Companies (i) asserting the
illegality, invalidity or unenforceability, or seeking any
determination or ruling that would affect the legality, binding
effect, validity or enforceability of any of the Transaction
Documents, (ii) seeking to prevent the consummation of any of
the transactions contemplated by the Transaction Documents, or
(iii) seeking any determination or ruling that is reasonably
likely materially and adversely to affect the financial
condition or results of operations of either of the Companies or
the performance of the Receivables.
3. The Amendment has been duly authorized, executed and delivered
by each of AK Steel and AKR, and the Purchase and Servicing
Agreement, as amended by the Amendment, is the legal, valid and
binding obligation of AK Steel and AKR, enforceable against such
AK Steel and AKR in accordance with its terms, except as such
enforceability against either such company may be (a) limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance, equity of redemption and similar laws
affecting the enforceability or creditors' rights generally; (b)
subject to the qualification that certain remedial provisions
therein may be unenforceable in whole or in part under
Exhibit A-2
laws, rules, regulations, court decisions, constitutional
requirements or public policy (but in my opinion the inclusion
of such provisions does not affect the validity of the Purchase
and Servicing Agreement, as amended by the Amendment, and the
Purchase and Servicing Agreement, as so amended, contains
adequate remedies for the practical realization of the benefits
intended to be conferred thereby); and (c) subject to general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). Such
principles of equity are of general application and in applying
such principles of court among other things, might decline to
enforce or order performance of a covenant in any of such
documents or might decline to allow the holder of the security-
interests provided for therein to accelerate the indebtedness
secured thereby for the purpose of enforcing the security
interest granted pursuant to the Purchase and Servicing
Agreement, as amended by the Amendment, or to realize upon any
security for payment of such indebtedness. Such principles
applied by a court might also limit the enforceability of
covenants relating to indemnity obligations, specific
performance and injunctive relief and include a requirement that
the Agent and the Purchasers act with reasonableness and good
faith and might be applied, among other situations, to any
provisions of the Purchase and Servicing Agreement, as amended
by the Amendment, purporting to authorize conclusive
determinations by the Agent or any Purchaser. In addition, to
the extent that any of the laws referenced in clause 3(a) affect
the enforceability of the Purchase and Servicing Agreement, as
amended by this Amendment, the grant, creation and perfection of
the ownership or security interests created thereunder could be
adversely affected.
The aforesaid opinions are limited to the federal laws of the United States of
America, the laws of the State of Ohio and the General Corporate Law of the
State of Delaware.
The opinions rendered herein may be relied upon by you and by any of your
successors, assigns and participants that are permitted under the Purchase and
Servicing Agreement, provided that such reliance is based on the laws, facts and
circumstances that exist as of the date of this opinion. Except for such
permitted successors, assigns and participants, the opinions expressed herein
are solely for the benefit of each of you, and may not be used, circulated,
quoted, relied upon or otherwise referred to in any manner by any other Person
or for any other purpose without my prior written consent.
Sincerely,
Xxxxxxx X. Xxxxxxx
Exhibit A-3
Schedule I
to Opinion Letter
PNC Bank, Ohio, National Association
as Agent, as L/C Issuing Bank and
as Lender under Swing Line Advances
National Corporate Banking
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
NBD Bank, N.A.
Midwest Banking Division
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Comerica Bank
000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxx, Xxxxxxxx 00000
Society National Bank
Corporate Banking
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Star Bank, National Association
Star Bank Center
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Schedule II
AK STEEL REVOLVING TRADE
RECEIVABLES PURCHASE FACILITY
Document List
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1. Purchase and Servicing Agreement (the "PSA"), dated as of December 1,
1994, among AK Steel Receivables Inc. ("AKR") as Transferor, AK Steel
Corporation ("AK Steel") as Servicer and Originator, the Purchasers
party thereto, and PNC Bank, Ohio, N.A. as Agent ("Agent")
1A. Amendment No. 1 to PSA dated as of November 17, 1995 (the "Amendment")
2. Swing Note dated as of December 1, 1994, in the principal amount of
$10,000,000
3. Receivables Purchase Agreement, dated as of December 1, 1994, between AK
Steel as Seller, and AKR as Purchaser
4. Subordinated Note from AKR to AK Steel, dated as of December 1, 1994
5. Collection Account Letter:
(a) NBD Bank, N.A.
(b) The Fifth Third Bank
(c) First National Bank of Chicago
6. Concentration Account Letter
