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Exhibit (10)-(58)
SIXTH AMENDMENT TO
PBGC-LTV SETTLEMENT AGREEMENT
This Sixth Amendment to the PBGC-LTV Settlement
Agreement (this "AMENDMENT") is made as of May 2, 1995, by
and among (1) Pension Benefit Guaranty Corporation ("PBGC"),
(2) The LTV Corporation, a corporation organized under the
laws of Delaware (in such capacity, "LTV"), and each other
member of the LTV Controlled Group (as defined in the
Settlement Agreement and listed on the signature pages
hereof), including, without limitation, LTV Steel Company,
Inc., a corporation organized under the laws of New Jersey
("LTV STEEL"), and (3) U.S. Trust Company of California,
N.A., as independent fiduciary (the "Independent
Fiduciary"), engaged by LTV as Named Fiduciary of the
Restored Plans to act on behalf of the Restored Plans with
respect to the transactions contemplated by this Sixth
Amendment and the Trico Subordination and Standstill
Agreement (as defined below), and is made with reference to
that certain Settlement Agreement dated as of June 28, 1993,
as amended to date (the "SETTLEMENT AGREEMENT"), by and
among PBGC, LTV, the Initial LTV Group and the
Administrator. Capitalized terms used without definition
herein shall have the same meanings as set forth in the
Settlement Agreement.
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RECITALS
WHEREAS, LTV and the LTV Controlled Group desire
to amend the Settlement Agreement to permit certain
transactions in connection with the participation by LTV,
through one or more wholly owned Subsidiaries of LTV, in the
Trico Joint Venture (as defined below) and the distribution
by Trico Sales Co. (as defined below) of steel products
manufactured by Trico Joint Venture;
WHEREAS, the Consent Order entered into by the
U.S. Department of Labor, the PBGC, LTV, and various
creditors in IN RE CHATEAUGAY CORP., Xx. 00 XXX 0000 (XXX)
(X.X.X.X.) (consolidated with Xx. 00 XXX (XXX)) and approved
by the Court on June 7, 1993, authorized, for the purpose of
compliance with Department of Labor Prohibited Transaction
Class Exemption 79-15, the parties to carry out all
transactions authorized or required by the Settlement
Agreement;
WHEREAS, the Settlement Agreement authorizes the
amendment of that Agreement pursuant to an agreement entered
into by the PBGC, LTV, the Administrator, and LTV Steel,
evidenced by a written instrument signed by their authorized
representatives;
WHEREAS, LTV as Named Fiduciary of the respective
Restored Plans has duly delegated to the Independent
Fiduciary sole discretion to determine whether to execute
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this Sixth Amendment and the Trico Subordination and
Standstill Agreement on behalf of the Restored Plans;
WHEREAS, subject to the terms and conditions
contained herein, the PBGC and the Independent Fiduciary
consent and are willing to agree to such amendments as
provided below.
NOW, THEREFORE, in consideration of the premises
and the agreements, provisions and covenants herein
contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO DEFINITIONS
-------------------------
(i) Section 1.1 is hereby amended by adding the
following definitions following Clause (mmm) thereof as
follows:
(nnn) "LTV TRICO ENTITY" shall mean each or any
of the LTV Trico Member and Trico Sales Co.
(ooo) "LTV TRICO MEMBER" shall mean, at any time,
LTV-Trico, Inc., a Delaware corporation, and any
other Person or Persons, each of which is, at such
time, a wholly owned Subsidiary of LTV and a
member of the Trico Joint Venture and does not, at
such time, engage in any business or activities
other than (x) as a member of the Trico Joint
Venture, (y) as contemplated, with respect to
members of the Trico Joint Venture, under the
Trico Transaction Documents in effect on the Sixth
Amendment Effective Date (as defined below), or
(z) other activities ancillary or incidental to
the foregoing.
(ppp) "TRICO JOINT VENTURE" shall mean Trico
Steel Company, L.L.C., a Delaware limited
liability company, or any successor entity
thereto, that constructs and operates a steel
minimill, manufactures steel products for
distribution by Trico Sales Co., and engages
in activities ancillary or incidental
thereto. It is understood that under the
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transaction structure contemplated by the
Trico Transaction Agreement as in effect as
of the closing thereunder, the Trico Joint
Venture is not a member of either the LTV
Consolidated Group or the LTV Controlled
Group.
(qqq) "TRICO TRANSACTION AGREEMENT" shall mean
the Transaction Agreement dated as of May 2, 1995
relating to the formation of the Trico Joint
Venture.
(rrr) "TRICO TRANSACTION DOCUMENTS" shall mean
the Trico Transaction Agreement and each
Transaction Document referred to in the Trico
Transaction Agreement, each as amended, modified
or supplemented from time to time; PROVIDED that,
without the prior written consent of the PBGC and
the Restored Plans, no amendment, restatement,
modification or restructuring of the Trico
Transactions Documents shall, at any time after
the Sixth Amendment Effective Date, (i) prohibit
any performance or satisfaction by LTV or any
member of the LTV Controlled Group of any
obligation (whether due or not due and whether
mandatory or voluntary) under this Agreement, or
(ii) directly conflict with any rights of the PBGC
or the Restored Plans or obligations of LTV or any
member of the LTV Controlled Group with respect to
the Restored Plans as set forth in this Agreement.
For purposes of this Agreement, the Trico
Transaction Documents in effect on the Sixth
Amendment Effective Date shall be deemed to
include the Commitment Letter dated May 2, 1995
among Chemical Bank, Chemical Securities Inc.,
LTV, Sumitomo Metal Industries, Ltd. and British
Steel plc and all Financing Documents (as defined
in the Trico Transaction Agreement) entered into
on or after the Sixth Amendment Effective Date
that are substantially consistent with and
implement the terms of such Commitment Letter.
(sss) "TRICO SALES CO." shall mean Trico
Steel Company, Inc., a Delaware corporation that
(x) is a wholly owned Subsidiary of LTV on the
date hereof and (y) does not engage in any
business or activities other than as contemplated
by the Trico Transaction Documents in effect on
the Sixth Amendment Effective Date or other
activities ancillary or incidental thereto.
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(ttt) "TRICO SUBORDINATION AND STANDSTILL
AGREEMENT" shall mean the Subordination and
Standstill Agreement dated as of the date hereof
among the PBGC, LTV, and U.S. Trust Company of
California, N.A., as independent fiduciary, and
acknowledged and agreed to by the LTV Controlled
Group.
(ii) Section 1.1(rr) is hereby amended by deleting
the word "and" immediately prior to clause (xi) thereof and
adding the following immediately prior to the period at the
end of Section 1.1(rr):
"; and (xii) any Lien on the ownership interests,
assets or property of the Trico Joint Venture or
any LTV Trico Entity or on the capital stock of
Trico Sales Co., in each case granted or created
in favor of any Person in accordance with the
Trico Transaction Documents"
SECTION 2. AMENDMENT to Definition of "Available Cash Flow"
-----------------------------------------------
The definition of "Available Cash Flow" set forth
in Section 5.4(f) of the Settlement Agreement is hereby
amended by adding the following new paragraph at the end of
such definition:
"A notional account (the "Trico Distributions Account")
shall be established which shall initially have a zero
balance and which shall be adjusted as follows. The
balance of the Trico Distributions Account shall be
increased (i) by the amount of any capital contribution
(or re-contribution) made by the LTV Trico Member to
the Trico Joint Venture at any time and (ii) by an
amount of interest accrued at a rate of 9.8% per annum
on the balance in such account on each day, which
amount shall be compounded monthly by being credited to
the Trico Distributions Account as of the end of each
calendar month. With respect to any cash amount
distributed (a "Trico Distribution") by the Trico Joint
Venture to the LTV Trico Member at any time, such Trico
Distribution shall first be applied to reduce the
balance of the Trico Distribution Account until such
account has a zero balance, and the remainder, if any,
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of the amount of such Trico Distribution shall be
included in "net cash provided by operating activities"
for purposes of the foregoing definition of "Available
Cash Flow" in the period in which such distribution is
received by the LTV Trico Member. Any contribution to
or distribution from the Trico Joint Venture shall only
be reflected in the computation of Available Cash Flow
to the extent provided in this paragraph."
SECTION 3. AMENDMENTS TO ARTICLE VI
------------------------
(i) Section 6.1 is hereby amended by adding after
the last sentence thereof the following:
"Notwithstanding the foregoing provisions of this
Section 6.1, the Guarantee Agreement to be
delivered by each LTV Trico Entity shall be
substantially in the form of Exhibit A hereto,
PROVIDED that such Guarantee Agreement to be
delivered by such LTV Trico Entity shall be (and
shall expressly state that it is) subject to the
Trico Subordination and Standstill Agreement".
(ii) Section 6.3 is hereby amended by adding after
the last sentence thereof the following:
"Notwithstanding the foregoing provisions of this
Section 6.3, the Guarantee Agreement to be
delivered by each LTV Trico Entity shall be
substantially in the form of Exhibit D hereto,
PROVIDED that such Guarantee Agreement to be
delivered by such LTV Trico Entity shall be (and
shall expressly state that it is) subject to the
Trico Subordination and Standstill Agreement".
SECTION 4. AMENDMENTS TO SECTION 8.1
-------------------------
(i) Section 8.1(a) is hereby amended by deleting
the word "and" immediately preceding clause (iv) and adding
the following immediately prior to the period at the end of
Section 8.1(a):
"; and (v) the Trico Joint Venture and each LTV
Trico Entity may sell, transfer, lease or
otherwise dispose of property and assets as
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contemplated by the Trico Transaction Documents as
in effect on the Sixth Amendment Effective Date"
(ii) Section 8.1(c) is hereby amended by adding
the following immediately prior to the period at the end of
Section 8.1(c):
"; PROVIDED that the agreements, obligations and
liabilities of each or any LTV Trico Entity under
this Section 8.1(c) shall be subject to the Trico
Subordination and Standstill Agreement"
(iii) Section 8.1(d) is hereby amended by adding
the following immediately prior to the period at the end of
Section 8.1(d):
"; and PROVIDED, FURTHER, that this Section 8.1(d)
shall not prohibit Trico Sales Co. from ceasing to
be a member of the LTV Controlled Group in the
manner contemplated by Section 3.05, 10.02, 15.04,
15.06 or 15.07 of the Amended and Restated Limited
Liability Company Agreement of the Trico Joint
Venture or Section 5.01 of the Trico Transaction
Agreement, each as in effect on the Sixth
Amendment Effective Date"
SECTION 5. AMENDMENTS TO SECTION 12.3
--------------------------
(i) The definition of "Permitted Indebtedness"
set forth in Section 12.3(c) is hereby amended by deleting
the word "and" immediately prior to clause (vii) thereof and
inserting a comma in its place and by adding the following
immediately prior to the period at the end of such
definition:
"and (viii) any Indebtedness under or contemplated
by any of the Trico Transaction Documents,
PROVIDED that, except for any LTV Trico Entity, no
member of the LTV Controlled Group may at any time
incur any Indebtedness under this clause (viii)
other than (x) the obligation of members of the
LTV Controlled Group under the Trico Transaction
Documents to re-contribute amounts to the Trico
Joint Venture at any time or from time to time up
to an aggregate of $20 million in respect of any
amount distributed by the Trico Joint Venture to
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the LTV Trico Member prior to such time and (y)
LTV's guaranty of the capital commitment of the
LTV Trico Member to the Trico Joint Venture under
the Trico Transaction Documents in an aggregate
amount up to $198 million,
(ii) Section 12.3(e) is hereby amended by adding
the following immediately prior to the period at the end of
Section 12.3(e):
"; and PROVIDED FURTHER, that this Section 12.3(e)
shall not apply to any transaction or series of
transactions contemplated by or in accordance with
the Supply and Marketing Agreement, the Services
Agreement or the Administrative Services Agreement
(each as defined in the Trico Transaction
Agreement and each as in effect on the Sixth
Amendment Effective Date)".
(iii) Section 12.3(f) is hereby amended by adding
the words "the Trico Transaction Documents (or any
amendments, modifications or supplements thereof to the
extent permitted under the definition of "Trico Transaction
Documents") or the Trico Subordination and Standstill
Agreement, which is incorporated in this Agreement by
reference as if set forth fully herein," immediately prior
to the words "the Sumitomo Agreement" in the proviso to
Section 12.3(f).
(iv) The following new clause (i) is hereby added
to Section 12.3 of the Settlement Agreement immediately
following Section 12.3(h):
"(i) LIMIT ON INVESTMENTS IN TRICO. At any time
after the Sixth Amendment Effective Date, make any
capital contribution to or equity investment in (each
such capital contribution or equity investment being a
"Trico Equity Investment"), or loan or advance to (each
such loan or advance, a "Trico Loan"; a Trico Loan or a
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Trico Equity Investment being referred to herein as a
"Trico Investment"), the Trico Joint Venture or Trico
Sales Co. if, after giving effect to such Trico
Investment, (i) the aggregate amount of such Trico
Investments then outstanding (net of equity
distributions) would exceed $300 million, (ii) the
aggregate amount of such Trico Equity Investments then
outstanding (net of equity distributions) would exceed
$250 million, or (iii) the aggregate amount of such
Trico Equity Investments then outstanding (net of
equity distributions) would exceed $200 million and the
Trico Equity Investment in question would not, to the
extent of such excess amount, be applied by the Trico
Joint Venture in respect of capital expenditures."
SECTION 6. AGREEMENT TO BE BOUND
---------------------
Subject to the Trico Subordination and Standstill
Agreement which is incorporated in this Sixth Amendment by
reference as if set forth fully herein, each LTV Trico
Entity hereby agrees to be bound by the Settlement Agreement
as a member of the LTV Controlled Group.
SECTION 7. EFFECTIVENESS AND MISCELLANEOUS PROVISIONS
------------------------------------------
A. EFFECTIVENESS. This Amendment shall become
effective upon the date (THE "SIXTH AMENDMENT EFFECTIVE
DATE") when (i) it, or a counterpart thereof, is executed by
a duly authorized officer of each of PBGC, LTV, the
Independent Fiduciary, and LTV Steel and (ii) the closing
under the Trico Transaction Agreement shall occur.
B. REFERENCE TO AND EFFECT
ON THE SETTLEMENT AGREEMENT.
(i) On and after the Sixth Amendment Effective
Date, each reference in the Settlement Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
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import referring to the Settlement Agreement shall mean and
be a reference to the Settlement Agreement as amended by
this Amendment.
(ii) Except as specifically amended by this
Amendment, the Settlement Agreement shall remain in full
force and effect.
C. APPLICABLE LAW. This Amendment shall be
interpreted in accordance with and governed by the laws of
the State of New York, except to the extent preempted by
federal law.
D. COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties to this Amendment
have caused this Amendment to be duly executed and delivered
by their respective duly authorized officers or
representatives as of the day and year first written above.
PENSION BENEFIT GUARANTY
CORPORATION
By: /s/ ?
----------------------------------
Deputy Executive Director
Title: and Chief Negotiator
-------------------------------
Date: April 27, 1995
--------------------------------
THE LTV CORPORATION, on behalf
of itself and the LTV
Controlled Group
By: /s/ A. W. Huge
----------------------------------
Title: Senior Vice President
-------------------------------
Date: May 2, 1995
--------------------------------
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U.S. Trust Company of
California, N.A., as
Independent Fiduciary on
behalf of the Restored Plans
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Title: Senior Vice President
---------------------------
Date: April 27, 1995
----------------------------
LTV STEEL COMPANY, INC.
By: /s/ A. W. Huge
------------------------------
Title:
---------------------------
Date:
----------------------------
LTV-TRICO, INC.
By: /s/ A. W. Huge
------------------------------
Title: Vice President
------------------------------
Date: May 2, 1995
----------------------------
TRICO STEEL COMPANY, INC.
By: /s/ A. W. Huge
------------------------------
Title: Vice President
---------------------------
Date: May 2, 1995
----------------------------
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[EXECUTION COPY]
SEVENTH AMENDMENT TO
PBGC-LTV SETTLEMENT AGREEMENT
This Seventh Amendment to the PBGC-LTV Settlement
Agreement (this "AMENDMENT") is made as of August 2, 1995,
by and among (1) Pension Benefit Guaranty Corporation
("PBGC") and (2) The LTV Corporation, a corporation
organized under the laws of Delaware (in such capacity,
"LTV"), and each other member of the LTV Controlled Group
(as defined in the Settlement Agreement and listed on the
signature pages hereof), including, without limitation, LTV
Steel Company, Inc., a corporation organized under the laws
of New Jersey ("LTV STEEL"). Capitalized terms used without
definition herein shall have the same meanings as set forth
in the Settlement Agreement.
RECITALS
WHEREAS, on June 28, 1993, the PBGC, LTV, each
other member of the Initial LTV Group, and the Administrator
entered into the Settlement Agreement (the "SETTLEMENT
AGREEMENT");
WHEREAS, pursuant to Section 6.1 of the Settlement
Agreement, LTV Steel issued zero coupon notes to the PBGC,
each dated June 28, 1993, in the aggregate face amount of
$454,000,000, $50,000,000 aggregate face amount of which has
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been repurchased by the LTV Consolidated Group (the "Old
Notes") ; and
WHEREAS, LTV Steel desires to amend such notes to
(a) permit the payment of interest on the outstanding
principal amount of such notes from time to time
semiannually (i) in immediately available funds, (ii)
through the issuance of additional notes or (iii) partly in
immediately available funds and partly through the issuance
of additional notes and (b) permit the prepayment of such
notes, in whole or in part (subject to a minimum partial
prepayment requirement), at any time; and
WHEREAS, in order to effect such amendments, LTV
Steel desires to exchange the Old Notes for a promissory
note issued by LTV Steel to the PBGC, having an issue date
of June 30, 1995, in the aggregate principal amount of
$48,361,762.53 fully guaranteed by each member of the LTV
Controlled Group; and
WHEREAS, the Settlement Agreement authorizes the
amendment of that Agreement pursuant to an agreement entered
into by the PBGC and LTV evidenced by written instrument
signed by their authorized representatives; and
WHEREAS, subject to the terms and conditions
contained herein, the PBGC consents and is willing to agree
to such exchange and to certain related amendments to the
Settlement Agreement as provided below;
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NOW, THEREFORE, in consideration of the premises
and the agreements, provisions and covenants herein
contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO DEFINITIONS
-------------------------
From hereon, the defined term "Notes" in the
Settlement Agreement shall mean collectively (a) the
promissory note, having the issue date of June 30, 1995,
issued by LTV Steel to the PBGC, fully guaranteed by each
member of the LTV Controlled Group (pursuant to a Guarantee
Agreement dated the date hereof), in the aggregate principal
amount of $48,361,762.53 in exchange for the Old Notes and
(b) any additional notes issued from time to time pursuant
to the terms thereof. From hereon, the defined term "Note
Guarantee" in the Settlement Agreement shall mean such
Guarantee Agreement dated the date hereof and any new
Guarantee Agreement executed by the LTV Controlled Group in
connection with any transfer or assignment of such Notes or
issuance of additional Notes.
SECTION 2. AMENDMENTS TO ARTICLE VI
-------------------------
(i) Section 6.1 is hereby amended by replacing the
second sentence thereof with the following sentence:
"The Notes will be prepayable in whole or in part
(subject to a minimum partial prepayment
requirement) at the option of LTV Steel at any
time by paying to the payee thereof the amount of
such prepayment together with all accrued and
unpaid interest thereon."
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(ii) Section 6.1 is hereby further amended by
replacing the last sentence thereof with the following
sentence:
"The Old Notes will each be substantially in the
form attached hereto as Exhibit B."
SECTION 3. AMENDMENT TO SECTION 14.2(G)
----------------------------
Section 14.2(g) is hereby amended and restated in
its entirety as follows:
"(g) The PBGC may declare the principal
amount and all accrued and unpaid interest on all
Notes held by it to be immediately due and
payable, upon which declaration such principal
amount and all accrued and unpaid interest shall
become immediately due and payable without further
act or notice of any kind, except that in the case
of any Event of Default under paragraph (g) or (h)
of Article XIII, such principal amount and all
accrued and unpaid interest shall automatically
become due and payable without any declaration or
notice, if permitted under Applicable Law at the
time of such Event of Default; and the PBGC may
enforce all rights of action and rights to assert
claims under any of the Notes held by it, in each
case as set forth therein;"
SECTION 4. EFFECTIVENESS AND MISCELLANEOUS PROVISIONS
------------------------------------------
A. EFFECTIVENESS. This Amendment shall become
effective upon the date (THE "SEVENTH AMENDMENT EFFECTIVE
DATE") when (i) it, or a counterpart thereof, is executed by
a duly authorized officer of each of the PBGC, LTV and LTV
Steel and (ii) LTV Steel issues the Notes to the PBGC.
B. REFERENCE TO AND EFFECT ON
THE SETTLEMENT AGREEMENT.
(i) On and after the Seventh Amendment Effective
Date, each reference in the Settlement Agreement to "this
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Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Settlement Agreement shall mean and
be a reference to the Settlement Agreement as amended by
this Amendment.
(ii) Except as specifically amended by this
Amendment, the Settlement Agreement shall remain in full
force and effect.
C. APPLICABLE LAW. This Amendment shall be
interpreted in accordance with and governed by the law of
the State of New York, except to the extent preempted by
federal law.
D. COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties to this Amendment
have caused this Amendment to be duly executed and delivered
by their respective duly authorized officers or
representatives as of the day and year first written above.
PENSION BENEFIT GUARANTY
CORPORATION
By: /s/ illegible
-------------------------------
Deputy Executive Director and
Title: Chief Negotiator
-----------------------------
Date: 8/3/95
------------------------------
THE LTV CORPORATION, on behalf
of itself and the other
members of the LTV Controlled
Group
By: /s/ X. X. Xxxxxx
-------------------------------
Title: VP & Treasurer
-----------------------------
Date: 8/2/95
------------------------------
LTV STEEL COMPANY, INC.
By: /s/ X. X. Xxxxxx
-------------------------------
Title: VP & Treasurer
-----------------------------
Date: 8/2/95
------------------------------
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