Exhibit 10.11(a)
AMENDMENT TO COKE SALE AGREEMENT
BETWEEN
WCI STEEL INC.
AND
MITTAL STEEL USA - XXXXXX, INC.
This AMENDMENT TO COKE SALE AGREEMENT (this "Amendment") is effective
January 1, 2007 and amends and supplements that certain Coke Sale Agreement
dated November 10, 2005 (the "Agreement") by and between Mittal Steel USA -
Xxxxxx, Inc. formally known as ISG Xxxxxx Inc. ("Seller") and WCI Steel, Inc.
("Buyer").
RECITALS
I. WHEREAS, pursuant to the Agreement executed by Buyer and Seller, the
Term of the Agreement was to expire December 31, 2006.
II. WHEREAS, Buyer and Seller wish to extend the Term, so that the Term
terminates December 31, 2008.
III. WHEREAS, Buyer and Sell desire to amend Article III ("QUANTITY AND
SCHEDULING") of the Agreement such that the contemplated quantity of [*****](1)
Net Tons be amended to [*****] Net Tons for the remainder of the Term.
IV. WHEREAS, Buyer and Seller wish to amend Article VI ("PURCHASE PRICE")
to reflect a change in the Purchase Price payable by Buyer to Seller for the
Blast Furnace Coke.
V. WHEREAS, Buyer and Seller desire to amend Article VII ("PAYMENT") to
amend the Payment Terms.
In consideration of the mutual covenants and promises herein contained and
other valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Effective January 1, 2007, Article I ("TERM") of the Agreement is hereby
amended to read as follows:
"I. TERM
This Agreement shall be effective August 1, 2005, and unless sooner
terminated pursuant to the various provisions of this Agreement, shall continue
for a period of forty-one calendar months through December 31, 2008 ("Term")."
2. Effective January 1, 2007, Article III ("QUANTITY AND SCHEDULING") of
the Agreement is hereby amended to read as follows:
"III. QUANTITY AND SCHEDULING
During the Term, Seller shall sell and deliver to Buyer and Buyer shall
purchase and accept delivery from Seller, pursuant to the terms and conditions
of this
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(1) CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
Agreement, [*****]% of the Blast Furnace Coke produced by Seller's Coke Plant.
Buyer acknowledges that the production rate of Blast Furnace Coke at Seller's
Coke Plant will vary from time to time. Seller, understanding the critical
nature of coke supply, will provide Buyer with prior notice of any planned
outage of coke producing capability at the Coke Plant. The aggregate amount of
Blast Furnace Coke to be purchased and sold hereunder shall not exceed [*****]
Net Tons (consisting of 2,000 pounds avoirdupois). Blast Furnace Coke deliveries
hereunder shall be approximately [*****] Net Tons per calendar week (Monday
through Sunday) or [*****] Net Tons per day subject to change as a result of
production rate variations."
3. Effective January 1, 2007, Article VI ("PURCHASE PRICE") of the
Agreement is hereby amended to read as follows:
"VI. PURCHASE PRICE
During the Term of this Agreement for each Net Ton of Blast Furnace Coke
delivered hereunder, Buyer shall pay Seller a [*****] of U.S. $[*****] F.O.B.
Blast Furnace surge bin at Buyer's Plant for [*****]% of the coke production
delivered to Buyer by Seller. The remaining [*****]% of the Blast Furnace Coke
production of Seller delivered to Buyer shall be at a [*****] Price indexed to
$[*****] per metric ton above the [*****] of the F.O.B. [*****] ([*****]% ash)
Blast Furnace Coke price as stated in the [*****]. The [*****] Price will be
adjusted quarterly. The basis of the [*****] Price is $[*****] per metric ton
F.O.B. [*****] and relates to the [*****] price of $[*****] per net ton sale
price F.O.B. Blast Furnace Coke. The [*****] Price will move upward or downward
[*****]. For example if the [*****] of the selling price as stated in the
[*****]
for [*****] coke ([*****]% ash) is $[*****] per metric ton the [*****] Price to
Buyer would be $[*****] per net ton. If the [*****] of the selling price as
stated in the [*****] for [*****] coke ([*****]%) ash is $[*****] per metric ton
the [*****] Price to Buyer would be $[*****] per net ton. In the event the
[*****] of the price for F.O.B. [*****] ([*****]% ash) Blast Furnace Coke as
published in the [*****] is $[*****] or greater per metric ton the formula for
the [*****] Price of $[*****] per net ton will convert to [*****]% of the
Delivered Coke to the Buyer. The remaining [*****]% of the Delivered Coke to
Buyer will be priced at the [*****] Price.
Both parties agree that the [*****] should reflect the normal transaction
price for coke loaded in [*****]. If either party determines that the published
price does not reflect the current transaction price, the parties will meet and
agree upon the current transaction price. If the parties are unable to reach an
agreement the dispute will be resolved through binding Baseball-type
Arbitration. Such arbitration shall be governed by the CPR Rules for
Non-Administered Arbitration of Business Disputes.
The Purchase Price for Blast Furnace Coke during any renewal term of this
agreement shall be according to separate written agreement between the parties
as provided in Section I hereof."
4. Effective January 1, 2007, Article VII ("PAYMENT") of the Agreement is
hereby amended to read as follows:
"VII. PAYMENT
Seller shall invoice Buyer no less frequently than weekly for Blast Furnace
Coke delivered hereunder. Effective January 1, 2007 Buyer shall pay Seller the
amount invoice within [*****] ([*****]) calendar days following the date of
invoice by wire transfer to an account identified by Seller from time to time or
through other payment method specified by Seller. Effective March 1, 2007 Buyer
shall pay Seller the amount invoice within [*****] ([*****]) calendar days
following the date of invoice by wire transfer to an account identified by
Seller from time to time or through other payment method specified by Seller.
Effective May 1, 2007 Buyer shall pay Seller the amount invoiced within [*****]
([*****]) calendar days following the date of invoice by wire transfer to an
account identified by Seller from time to time or through other payment method
specified by Seller. Buyer shall, upon request by Seller, provide Seller with
all information concerning Buyer's financial condition that Seller may
reasonably require to determine Buyer's capability to satisfy its obligations
hereunder. Buyer shall, upon request by Seller, provide such financial
assurances that Seller may require to satisfy Seller that Buyer will complete
its obligations hereunder."
5. Effective January 1, 2007, Article XII ("ASSIGNMENT") of the Agreement
is hereby amended to read as follows:
"XII. ASSIGNMENT
This Agreement is assignable by either party hereto only with the written
consent of the non-assigning party, which consent shall not be unreasonably
withheld. Upon an effective assignment as provided for in this paragraph XII,
the assigning party shall
thereafter be fully released from its obligation hereunder; provided, however,
that the assignor and assignee shall be jointly and severally liable for payment
for Blast Furnace Coke delivered to Buyer prior to assignment. Subject to the
limitations set forth in this paragraph XII, all the terms of this Agreement
shall be binding upon inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding anything in this Agreement to
the contrary, upon written notice to Seller, Buyer may assign this Agreement
and/or its rights and obligations hereunder (1) to any affiliate of Buyer that
controls, is controlled by, or is under common control with Buyer; and (2) to
any entity that acquires all or substantially all of Buyer's assets to which
this Agreement pertains or that merges with Buyer."
6. This Amendment shall be construed in accordance with, and governed in
all respects by, the laws of the State of Ohio without giving effect to the
principles of conflict of laws thereof.
7. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.
8. Except as expressly provided herein, each of the provisions of the
Agreement shall remain in full force and effect following the execution of this
Amendment.
9. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives.
WCI STEEL, INC.
By:
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Its:
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Date:
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MITTAL STEEL USA - XXXXXX, INC.
By:
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Its:
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Date:
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