EXHIBIT 10.4.17
Execution
AMENDMENT NO. 3 TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT,
dated as of September 13, 2002 by and among WCI STEEL, INC., an Ohio corporation
("WCI Steel"), WCI STEEL SALES L.P., an Ohio limited partnership ("WCI Sales
LP", and together with WCI Steel, individually, each a "Borrower" and
collectively, "Borrowers"), CONGRESS FINANCIAL CORPORATION, a Delaware
corporation, as successor by merger to Congress Financial Corporation, a
California corporation (in its individual capacity "Congress"), BANK OF AMERICA,
N.A., a national trust and savings association, as successor to BankAmerica
National Trust & Savings Association ("Bank of America", and together with
Congress, collectively "Lenders"), and CONGRESS FINANCIAL CORPORATION, as Agent
for Lenders (in such capacity, "Agent").
W I T N E S S E T H
WHEREAS, Borrowers have entered into financing arrangements with Lenders
and Agent pursuant to which Lenders (or Agent on behalf of Lenders) have made
loans and provided other financial accommodations to Borrowers as set forth in
the Second Amended and Restated Loan and Security Agreement, dated July 30,
1999, between Borrowers, Lenders and Agent as amended by Amendment No. 1 to
Second Amended and Restated Loan and Security Agreement, dated April 30, 2001
and Amendment No. 2 to Second Amended and Restated Loan and Security Agreement,
dated January 25, 2002 (as the same now exists and is amended hereby and may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and the other agreements, documents
and instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including this Amendment (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrowers have requested that Lenders and Agent agree to certain
amendments to the Loan Agreement and Lenders and Agent are willing to agree to
such amendments, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment, Borrowers, Lenders and Agent intend to evidence
such amendments.
NOW, THEREFORE, in consideration of the foregoing, and the agreements and
covenants contained herein, the parties hereto agree as follows (with the
amendments to the Loan Agreement being effective as of the date hereof):
1. DEFINITIONS. For purposes of this Amendment, unless otherwise defined
herein, those terms used herein, including, but not limited to, those terms used
and/or defined in the recitals above, shall have the respective meanings given
to such terms in the Loan Agreement.
2. AMENDMENTS.
(a) EXCESS AVAILABILITY. Section 7.22 of the Loan Agreement is hereby
amended to delete such section in its entirety and replace it as follows:
"7.22 EXCESS AVAILABILITY. The aggregate Excess Availability of
Borrowers shall at all times be not less than $20,000,000; PROVIDED,
THAT, the aggregate Excess Availability of Borrowers shall at all
times be not less than $25,000,000 at any time on or after Borrowers
shall have failed to comply with Section 7.23 hereof as determined by
Agent. For purposes of calculating the "Excess Availability" of a
Borrower in accordance with the definition set forth in Section 1.30
hereof for this Section 7.22, in the event that the amount calculated
pursuant to subsection (a)(i) of such definition exceeds the amount
calculated pursuant to subsection (a)(ii) of such definition, then up
to $5,000,000 of such excess may be added to the amount calculated
pursuant to subsection (a)(ii) of such definition prior to the
deduction provided for in subsection (b) of such definition, so long
as the amount of such excess added for purposes of calculating the
aggregate Excess Availability of both Borrowers for this Section 7.22
shall not exceed $5,000,000 in total."
(b) EBITDA. Section 7 of the Loan Agreement is hereby amended to add a new
Section 7.23 as follows:
"7.23 EBITDA. WCI Steel and its Subsidiaries shall, for each
month listed below, have cumulative EBITDA of not less than the amount
listed opposite each such month:
MONTH ENDING MINIMUM EBITDA
------------ --------------
August 31, 2002 $4,000,000
September 30, 2002 $9,000,000
October 31, 2002 $14,000,000
November 30, 2002 $18,000,000
December 31, 2002 $22,000,000
January 31, 2003 $27,500,000
February 28, 2003 $31,500,000
March 31, 2003 $35,600,000
April 30, 2003 $39,700,000
May 1, 2003 $43,800,000
June 1, 2003 $47,900,000
July 1, 2003 $52,100,000
August 30, 2003 $56,300,000
September 30, 2003 $60,500,000
October 31, 2003 $64,700,000
November 30, 2003 $69,000,000
December 31, 2003 $73,000,000"
3. AMENDMENT FEE. In addition to all other fees, charges, interest and
expenses payable by Borrowers to Agent, Borrowers shall pay to Agent for the
ratable benefit of Lenders a fee for entering into this Amendment in an amount
equal to $xxx,xxx, which fee is fully earned as of the date hereof and due and
payable on the date hereof, and which Agent may, at its option, charge directly
to the loan account(s) of Borrowers.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower represents,
warrants and covenants with and to Lenders and Agent as follows, which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof, the truth and accuracy of, or compliance with
each, together with the representations, warranties and covenants in the other
Financing Agreements, being a continuing condition of the making or providing of
any Loans or Letter of Credit Accommodations by or on behalf of Lenders to
Borrowers:
(a) This Amendment has been duly authorized, executed and delivered by
each Borrower, and the agreements and obligations of each Borrower contained
herein constitutes legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with its terms.
(b) Neither the execution and delivery of this Amendment, or any other
agreements, documents or instruments in connection herewith, nor the
consummation of the transactions herein or therein contemplated, nor compliance
with the provisions hereof or thereof (i) is in contravention of any law or
regulation or any order or decree of any court or governmental instrumentality
applicable to Borrowers in any respect, or (ii) conflicts with or results in the
breach of, or constitutes a default in any respect under any mortgage, deed of
trust, security agreement, agreement or instrument to which either Borrower is a
party or may be bound, or (iii) violates any provision of the certificate of
incorporation or by-laws of WCI Steel or the partnership agreement of WCI Sales
LP.
(c) No Event of Default or act, condition or event which with notice or
passage or time or both would constitute an Event of Default, exists or has
occurred and is continuing.
5. CONDITIONS PRECEDENT. The effectiveness of the terms and conditions of
this Amendment shall be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent:
(a) the receipt by Agent of an original of this Amendment, duly
authorized, executed and delivered by Borrowers;
(b) the receipt by Agent of the fee set forth in Section 3 hereof; and
(c) no Event of Default shall have occurred and be continuing and no event
shall have occurred or condition be existing and continuing which, with notice
or passage of time or both, would constitute an Event of Default.
6. GENERAL.
(a) EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto, no
other 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
date hereof. To the extent of conflict between the terms of this Amendment and
the Financing Agreements, the terms of this Amendment shall control.
(b) FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary to
effectuate the provisions and purposes of this Amendment.
(c) 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 internal laws of the State of New York without regard to
principals of conflicts of law or other rule of law that would result in the
application of the law of any jurisdiction other than the State of New York.
(d) BINDING EFFECT. This Amendment is binding upon and shall inure to
the benefit of Agent, Lenders and Borrowers and their respective successors and
assigns.
(e) COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument. 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 hereto. This Amendment may be executed and delivered by
telecopier with the same force and effect as if it were a manually executed and
delivered counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The parties hereto have caused this Amendment to be duly executed and
delivered by their duly authorized officers as of the day and year first above
written.
CONGRESS FINANCIAL CORPORATION,
as Lender
By: /S/ XXXX X. XXXXX
Title: Vice President
BANK OF AMERICA, N.A., as
successor to BankAmerica National
Trust & Savings Association,
as Lender
By: /S/ XXXXXXX X. XXXX
Title: Vice President
WCI STEEL, INC.
By: /S/ XXXX X. XXXXXXXX
Title: Vice President and Chief Financial Officer
WCI STEEL SALES L.P.
By: /S/ XXXX X. XXXXXXXX
Title: Vice President and Chief Financial Officer
CONGRESS FINANCIAL CORPORATION,
as Agent
By: /S/ XXXX X. XXXXX
Title: Vice President
