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EXHIBIT 10.4.13
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AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
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AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of April 30, 2001 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. ("BankAmerica", and together with Congress, collectively "Lenders"), and
CONGRESS FINANCIAL CORPORATION, as Agent for Lenders (in such capacity,
"Agent").
WITNESSETH
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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 Amended and Restated Loan and Security Agreement, dated July 30, 1999,
between Borrowers, Lenders and Agent (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.
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2. ADJUSTED NET WORTH. Section 7.19 of the Loan Agreement is hereby deleted in
its entirety and the following is substituted therefor:
"7.19 CONSOLIDATED ADJUSTED NET WORTH. WCI Steel and its
Subsidiaries shall, at all times, maintain a Consolidated Adjusted
Net Worth of not less than negative $200,000,000 on the date
hereof and at all times thereafter."
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, its option, charge directly to the loan
account(s) of Borrowers.
4. EVENTS OF DEFAULT. Lenders and Agent have not waived and are not by this
Amendment waiving, and have no intention of waiving, any Event of Default, which
may have occurred prior to the date hereof, or may be continuing on the date
hereof or any Event of Default which may occur after the date hereof. Lenders
and Agent reserve the right, in their discretion, to exercise any or all rights
and remedies arising under the Financing Agreements, applicable law or otherwise
as a result of any Events of Default which may have occurred prior to the date
hereof, or are continuing on the date hereof, or any Event of Default which may
occur after the date hereof.
5. 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.
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(c) After giving effect to the provisions of this Amendment, 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.
6. CONDITIONS PRECEDENT. The effectiveness of the terms and conditions of this
Amendment shall be subject to the receipt by Agent of an original of this
Amendment, duly authorized, executed and delivered by Borrowers.
7. 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 giving
effect to principles of conflict of laws).
(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.
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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/ XXXXXX XXXXXX
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Title: First Vice President
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BANK OF AMERICA, N.A.,
as Lender
By: /S/ XXXXXXX XXXX
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Title: Vice President
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WCI STEEL, INC.
By: /S/ XXXX X. XXXXXXXX
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Title: Vice President and CFO
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WCI STEEL SALES L.P.
By: /S/ XXXX X. XXXXXXXX
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Title: Treasurer
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CONGRESS FINANCIAL CORPORATION,
as Agent
By: /S/ XXXXXX XXXXXX
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Title: First Vice President
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