EXHIBIT 3.10
WCI STEEL SALES, L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this
"Agreement"), made and entered into as of the 25th day of April, 2007, by and
among WCI STEEL PRODUCTION CONTROL SERVICES, INC., a Delaware corporation, as
general partner (the "General Partner"), and WCI STEEL METALLURGICAL SERVICES,
INC., a Delaware corporation, as the limited partner (the "Limited Partner"), is
intended to evidence the mutual agreement of the parties hereto (individually,
each a "Partner" and, collectively, the "Partners") to join together in a
limited partnership for the purposes and upon the terms and conditions
hereinafter set forth.
WHEREAS, the Partnership was formed by filing a Certificate of Limited
Partnership with the Secretary of State of the State of Delaware on the 21st day
of April, 2006 (the "Formation Date");
WHEREAS, the Partners are parties to that certain Limited Partnership
Agreement made and entered into as of the 21st day of April, 2006 ("Initial
Agreement"); and
WHEREAS, the Partners desire and agree to amend and restate the Initial
Agreement pursuant hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Name and Purpose. The Partners hereby form a limited partnership under
the name and style of WCI STEEL SALES, L.P. (the "Partnership"). The Partners
shall forthwith cause an executed counterpart of the Certificate of Limited
Partnership to be filed in the office of the Secretary of State of the State of
Delaware in accordance with Delaware Revised Uniform Limited Partnership Act, 6
Delaware Code, Chapter 17 and in any other jurisdiction in which the Partnership
engages in business activities and such filing is required by law.
This Partnership is formed for any purpose for which partnerships may
legally operate pursuant to Delaware Revised Uniform Limited Partnership Act, 6
Delaware Code, Chapter 17.
To consummate the foregoing and to carry out the obligations of the
Partnership in connection therewith or incidental thereto, the General Partner
shall have the authority (subject to the provisions of Section 8 hereof): (i) to
borrow money and to make and issue notes, obligations and evidences of
indebtedness of all kinds, whether secured by mortgage, pledge or otherwise, and
to secure the same by mortgage, pledge or otherwise; (ii) to make, enter into,
perform and carry out any arrangements, contracts or agreements of every kind
and for the purposes set forth above with corporations, associations,
partnerships, firms, trustees, syndicates, individuals and political or
governmental divisions and subdivisions, domestic or foreign; and (iii)
generally to do any and all things necessary or incidental to the foregoing and
in furtherance of the purpose of the Partnership.
2. Principal Office. The principal office of the Partnership shall be
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, or at such other
place as the General Partner may from time to time determine.
3. Term. The Partnership as herein constituted shall commence as of the
Formation Date and shall continue indefinitely, unless dissolved or terminated
as hereinafter provided.
4. Agent for Service of Process. The agent of the Partnership for service
of process is:
National Registered Agents, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5. Capital Contributions; Additional Capital.
a. The General Partner has contributed cash to the Partnership, as
more fully set forth on the books of the Partnership, in return for its
interest as General Partner in the Partnership.
b. The Limited Partner has contributed cash to the Partnership, as
more fully set forth on the books of the Partnership, in return for its
interest as the Limited Partner in the Partnership.
c. In the event that at any time or times further capital is
required by the Partnership in order to meet any obligation or to pay any
liability of the Partnership, the Partners may, at the option of the
General Partner, either (i) borrow such required capital from any person,
including any Partner, on such terms and conditions as the General Partner
may determine, or (ii) offer and sell interests in the Partnership to such
persons on such terms and conditions as the General Partner may determine.
In such latter event, the General Partner shall cause this Agreement to be
amended and restated as required to reflect the admission of the
purchasers of the interests in the Partnership as partners of the
Partnership.
6. Profits, Losses and Distributions.
a. Taxable income or loss shall be allocated among the Partners in
proportion to the following percentages ("Percentage Interests"):
General Partner: 99%
Limited Partner: 1%
b. Any funds held by the Partnership and not required for the
operation of the Partnership's business shall, subject to the
establishment of
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reserves determined to be reasonable in the discretion of the General
Partner, be distributed at least annually as follows: (i) first to repay
any loans by Partners to the Partnership; and (ii) then to the Partners in
accordance with their then respective Percentage Interests in the
Partnership. No partner shall be entitled to make withdrawals from the
Partnership except to the extent of distributions made under this Section
6.
c. The Partnership books shall be kept in accordance with reasonable
accounting principles as determined by the accountants employed by the
Partnership. The fiscal year of the Partnership shall end on December 31
of each year.
d. Notwithstanding any provision of this Agreement to the contrary,
to the extent required by law, income, gain, loss and deduction
attributable to any property contributed to the Partnership by a Partner
shall be shared among the Partners so as to take into account any
variation between the basis of the property and the fair market value of
the property at the time of contribution in accordance with the
requirements of Section 704(c) of the Internal Revenue Code of 1986, as
amended (the "Code").
7. Capital Accounts.
a. There shall be maintained a capital account for each Partner. The
amount of cash and the fair market value of property contributed to the
Partnership by each Partner shall be credited to its capital account and,
from time to time, but not less often than annually, the share of each
Partner in net profits, net losses and the fair market value of
distributions shall be credited or charged to its capital account. The
determination of Partners' capital accounts, and any adjustments thereto,
shall be made consistent with tax accounting and other principles set
forth in Section 704(b) of the Code and applicable regulations thereunder.
b. If at any time the Partnership shall suffer a loss as a result of
which the capital account of any Partner shall be a negative amount, such
loss shall be carried as a charge against its capital account, and its
share of subsequent profits of the Partnership shall be applied to restore
such deficit in such capital account. The Limited Partner shall not be
required to make any further contribution to the capital of the
Partnership to restore a loss, to discharge any liability of the
Partnership or for any other purpose, nor shall the Limited Partner be
personally liable for any liabilities of the Partnership or of the General
Partner, except as provided by law or any other provision of this
Agreement.
c. Immediately following the transfer of any Partnership interest,
the applicable capital account of the transferee Partner shall be equal to
such capital account of the transferor Partner attributable to the
transferred interest.
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d. No Partner shall be entitled to make withdrawals from its capital
account except as provided herein.
e. The assets of the Partnership may, in the discretion of the
General Partner, be revalued on the books of the Partnership to reflect
the fair market value of such assets and the capital accounts of the
Partners shall be adjusted in the manner provided in Treasury Regulation
Section 1.704-1(b)(2)(iv)(f) upon the occurrence of any of the following
events:
(i) the acquisition of an additional interest in the Partnership
by any new or existing Partner;
(ii) the distribution by the Partnership to a Partner of
Partnership property, other than money, unless all Partners
receive simultaneous distributions of undivided interests in
the distributed property in proportion to their respective
interests in the Partnership; or
(iii) the liquidation of the Partnership for federal income tax
purposes.
f. If property is contributed to the Partnership or there is a
revaluation of Partnership property so that the book value of property
differs from its adjusted tax basis, the capital accounts of the Partners
shall be appropriately adjusted for income, gain, loss and deductions in
the manner provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
8. Powers Duties Liabilities and Compensation of Partners.
a. Subject to any additional limitations imposed by law or this
Agreement, the General Partner shall manage and control and make all
decisions affecting the business and assets of the Partnership. Without
limiting the generality of the foregoing, however, the General Partner
shall have the power to:
(i) authorize, approve and take all action with respect to:
distributions from the Partnership; acquisitions or
dispositions of, or the granting of mortgages on, property
(real or personal); leases of property (real or personal);
borrowings of funds; execution of contracts, bonds,
guarantees, notes and mortgages; and all other instruments and
transactions deemed appropriate by the General Partner in
connection with the operations of the Partnership's business
or to effect the purposes of this Agreement;
(ii) admit a limited partner in substitution of the Limited Partner
disposing of its interests in the Partnership; and
(iii) employ such persons (including any Partner), firms or
corporations for the conduct of the business of the
Partnership on such terms and for such compensation as the
General Partner shall determine,
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notwithstanding the fact that any Partner may have an interest
in such firms or corporations.
b. The General Partner shall manage or cause to be managed the
affairs of the Partnership over which it has control in a prudent and
business-like manner and shall devote such part of its time and effort to
the Partnership affairs as is necessary.
c. In carrying out its obligations hereunder, the General Partner
shall:
(i) furnish financial statements to the Partners on an annual
basis;
(ii) obtain and maintain such public liability and other insurance
as it shall deem necessary or appropriate to protect the
Partnership and its assets or comply with any obligation of
the Partnership;
(iii) deposit all funds of the Partnership in one or more separate
bank accounts with such banks or trust companies as it may
select (withdrawals from such bank accounts to be made upon
such signature or signatures as it may designate);
(iv) maintain complete and accurate records of all properties of
the Partnership and complete and accurate books of account
(containing such information as shall be necessary to record
allocations and distributions), and make such records and
books of account available for inspection and audit by any
Partner or its duly authorized representative (at the expense
of such Partner) during regular business hours and at the
principal office of the Partnership;
(v) have prepared and distributed to all Partners all reasonable
tax reporting information; and
(vi) cause to be filed such certificates and do such other acts as
may be required by law to qualify and maintain the Partnership
as a limited partnership.
d. In carrying out its duties hereunder, the General Partner shall
not be liable to the Partnership or to any other Partner for any actions
taken in good faith and reasonably believed to be in the best interests of
the Partnership, but shall be liable only for willful misconduct, fraud or
breach of its obligations under this Agreement.
e. No financial institution or any other person, firm or corporation
dealing with the General Partner shall be required to ascertain whether
the General Partner is acting in accordance with this Agreement, but such
financial institution or such other person, firm or corporation shall be
protected in relying
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solely upon the deed, transfer or assurance of, and the execution of the
instrument or instruments by, the General Partner.
9. Rights of Partners.
a. The Partnership may engage a Partner or persons or firms
associated with a Partner and may otherwise deal with a Partner on such
terms and for compensation to be agreed upon by such Partner and the
Partnership.
b. Each Partner shall be entitled to have the Partnership books kept
at the principal place of business of the Partnership, and at all times,
during reasonable business hours, shall be entitled to inspect and copy
any of them and have on demand true and full information on all things
affecting the Partnership and a formal account of Partnership affairs
whenever circumstances render it just and reasonable.
10. Prohibitions with Respect to the Limited Partner. No Limited Partner,
as such, shall have the right:
a. to take part in the control of the Partnership business or to
sign for or to bind the Partnership, such power being vested solely in the
General Partner;
b. to have its capital contributions or loans, if any, repaid,
except as otherwise provided in this Agreement;
c. to require partition of Partnership property or to compel any
sale or appraisement of the Partnership assets or sale of a deceased or
dissolved Partner's interest therein, notwithstanding any provisions of
law to the contrary; or
d. to sell or assign its interest in the Partnership or to
constitute the vendee or assignee thereof except as provided in Section 11
hereof.
11. Transfer of Interests.
a. The Limited Partner shall have the right, subject to the
provisions of this Section 11(a), to sell or assign its interest as a
limited partner of the Partnership to any person not a member of the
Partnership (excepting a minor or person adjudged insane or incompetent),
firm or corporation; provided, however, that (i) such assignment shall be
by instrument in form and substance satisfactory to the General Partner
(which instrument shall contain an expression by the assignee of its
intention to be substituted as a Limited Partner and its acceptance and
adoption of all of the terms and provisions of this Agreement, as the same
may have been amended, and shall provide for the payment of all reasonable
expenses incurred by the Partnership in connection with such admission,
including, but not limited to, the cost of preparing, filing and
publishing any necessary amendment to the Certificate of Limited
Partnership), (ii) such assignee shall be approved by the General Partner,
which approval may not be unreasonably withheld or delayed, and (iii) the
Partnership shall receive the
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opinion of its counsel that such transfer of interest is in compliance
with all federal and state securities laws applicable thereto. Any
substitute limited partner shall have the same rights and powers as the
transferor Limited Partner, and shall have the right to sell or assign its
interest in the same manner and subject to the same conditions.
b. Upon the bankruptcy of any Limited Partner, the Partnership shall
continue as to the Limited Partner's representatives, successors or
assigns, as the case may be. Any person or persons who acquire the
Partnership interest of a Limited Partner may, with the consent of the
General Partner, become a substitute Partner, subject to the provisions of
this Section 11.
12. Termination of the Partnership.
a. The Partnership shall be dissolved upon the dissolution or
adjudication of bankruptcy or insolvency of the General Partner. The
Partnership shall also be dissolved upon the sale or exchange of all or
substantially all of the Partnership's assets or upon the expiration of
the term described in Section 3 hereof. Upon dissolution of the
Partnership, the General Partner (or its successor) shall proceed with the
winding up of the Partnership, and its assets shall be applied and
distributed as herein provided.
(i) The assets shall first be applied to any liabilities of the
Partnership (other than any loans or advances that may have
been made by the Partners to the Partnership) and the expenses
of liquidation. A reasonable time shall be allowed for the
orderly liquidation of the assets of the Partnership and the
discharge of liabilities to creditors so as to enable the
General Partner (or its successor) to minimize any losses
resulting from a liquidation.
(ii) Any remaining assets shall next be applied to the repayment of
any other loans made by any Partner to the Partnership with
the most recent loans being repaid first.
(iii) Any remaining assets shall then be divided pro rata among all
Partners in accordance with their then respective Percentage
Interests.
(iv) Notwithstanding the foregoing, the General Partner (or its
successor) may retain such amount as is deemed reasonably
necessary as a reserve for any contingent liabilities or
obligations of the Partnership. Any funds remaining in such
reserve account after a reasonable period of time following
the termination of the Partnership and the distribution of the
assets to the Partners shall be distributed to the Partners as
provided in this Section 12.
b. Each of the Partners shall be furnished with a statement prepared
by the Partnership's accountants which shall set forth the assets and
liabilities of
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the Partnership as of the date of the complete liquidation. Upon
compliance with the foregoing distribution plan, the remaining Partners
shall cease to be such and the General Partner (or its successor) shall
execute and cause to be filed a certificate of cancellation of the Limited
Partnership and any and all other documents necessary with respect to
termination and cancellation.
13. Indemnification of Partners. The Partnership shall indemnify and hold
harmless each Partner, and each owner, officer and director thereof, from and
against any loss, expense, damage or injury suffered or sustained by it by
reason of any acts, omissions or alleged acts or omissions (even if such acts or
omissions constituted the simple negligence of the Partner, or such owner,
officer or director) arising out of its activities on behalf of the Partnership
or in furtherance of the interest of the Partnership, including but not limited
to any judgment, award, settlement, attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim if the acts, omissions or alleged acts or omissions upon
which such actual or threatened action, proceeding or claim is based were for a
purpose reasonably believed by the Partner to be in the best interest of the
Partnership and were not performed or omitted fraudulently or in bad faith or as
a result of gross negligence by such indemnified party or were not in violation
of the Partner's fiduciary obligation to the Partnership as limited herein.
14. Miscellaneous Provisions.
a. The Partnership and this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
b. This Agreement contains the entire understanding among the
Partners as such and supersedes any prior understandings and agreements
among the parties with respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or
written, among the Partners as such relating to the subject matter of this
Agreement which are not fully expressed herein or superseded hereby.
c. This Agreement is intended to be performed in accordance with,
and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations of any jurisdiction in which the Partnership does
business. If any provision of this Agreement, or the application thereof
to any person or circumstance, shall, for any reason and to any extent, be
invalid or unenforceable, the remainder of this Agreement and the
application of such provision to the other persons or circumstances shall
not be affected thereby, but rather shall be enforced to the greatest
extent permitted by law.
d. Notices to the General Partner or to the Partnership shall be
deemed to have been given when mailed, by a nationally recognized
overnight delivery service such as FedEx, charges pre-paid, addressed as
follows:
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WCI Steel Production Control Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
or as set forth in any notice or change of address previously given in writing
by the addressee to the addressor.
e. Notices to any Limited Partner shall be deemed to have been given
when mailed, by prepaid registered or certified mail, addressed as set
forth on Exhibit A for the Limited Partner, or as set forth in any notice
or change of address previously given in writing by the addressee to the
addressor.
f. All titles and captions are for convenience only, do not form a
substantive part of this Agreement and shall not restrict or enlarge any
substantive provisions of this Agreement.
g. All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the person or persons may
require.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
GENERAL PARTNER:
WCI STEEL PRODUCTION CONTROL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Finance
LIMITED PARTNER:
WCI STEEL METALLURGICAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Finance
Signature Page to Amended and Restated
Limited Partnership Agreement
EXHIBIT A
Cash Percentage Interest
Name and Address Contributed in the Partnership
---------------- ----------- ------------------
GENERAL PARTNER
WCI Steel Production Control
Services, Inc. $5,940,000 99%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LIMITED PARTNER
WCI Steel Metallurgical
Services, Inc. $ 60,000 1%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Exhibit A to Amended and Restated
Limited Partnership Agreement
