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Exhibit 10.9
AMENDMENT NO. 3 TO
AMENDED AND RESTATED
RECEIVABLES PARTICIPATION AGREEMENT
This Amendment No. 3 (the "Amendment") dated as of March 2,2001 is
among Weirton Receivables, Inc. (the "Seller"), Weirton Steel Corporation
("Weirton"), the Financial Institutions Party hereto (the "Banks") and PNC Bank,
National Association, as facility agent for the Banks (in such capacity,
together with its successors and assigns in such capacity, the "Agent").
WITNESSETH
WHEREAS, the Seller, Weirton, the Banks and the Agent are parties to
that certain Amended and Restated Receivables Purchase Agreement dated as of
March 26, 1999 (as previously amended and as amended, restated, supplemented or
otherwise modified from time to time, the "Agreement"); and
WHEREAS, the Seller, Weirton, the Banks and the Agent desire to amend
the Agreement in certain respects more fully described below;
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized used and not otherwise defined
herein shall have the meanings assigned to such terms in the Agreement.
SECTION 2. Amendments to the Agreement.
(a) The definition of "Minimum Reserve Percentage" contained in Exhibit
I to the Agreement is hereby amended by replacing the reference to "20%"
contained in clauses (a)(i) and (b)(i) thereof, in each case, with a reference
to "40%".
(b) The definition of "Concentration Percentage" contained in
Exhibit I to the Agreement is hereby amended and restated in its entirety to
read as follows:
"'Concentration Percentage' means: (a) for any Group A Obligor, 15% (b)
for any Group B Obligor, 10%, (c) for any Group C Obligor, 10% and (d) for any
Group D
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Obligor, 8%; provided, however, that the Facility Agent may, if the Rating
Agency Condition is satisfied, approve higher Concentration Percentages for
selected Obligors."
SECTION 3. Representations and Warranties. Each of the Seller and
Weirton represents and warrants to the Banks and the Agent that:
(a) the representations and warranties made by it in Section 2.1 of the
Agreement are true and correct on and as of the "Amendment Effective Date" (as
such term is defined below) with the same effect as if made on and as of the
Amendment Effective Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they were true and
correct as of such earlier date);
(b) after giving effect to the amendment contained herein, no
Termination Event or Unmatured Termination Event exists or will result from the
execution of this Amendment; and
(c) each of the Agreement and this Amendment is its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditor's rights generally or by
equitable principles relating to enforceability.
SECTION 4. Effective Date. This Amendment shall become effective as of
the date first written above (the "Amendment Effective Date") upon (i) receipt
by the Agent of counterparts of this Amendment duly executed by the Seller,
Weirton, the Majority Banks and the Agent, the date first written above and (ii)
satisfaction of the Rating Agency Condition.
SECTION 5. Execution in 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 shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 6. Continuing Effectiveness, Etc. On and after the Amendment
Effective Date, each reference in the Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and all references to
the Agreement in any and all agreements, instruments, documents, notes,
certificates and other writings of every kind and nature shall be deemed to mean
and be a reference to the Agreement as amended hereby. The Agreement, as hereby
amended, shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
SECTION 7. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK).
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SECTION 8. Successors and Assigns. This Amendment shall be binding upon
the Seller, Weirton, the Banks and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Seller, Weirton, the Banks and
the Agent and their successors and assigns.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment as of the date first written above written.
WEIRTON RECEIVABLES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: VP Finance & CFO
WEIRTON STEEL CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: VP Finance & CFO
PNC BANK. NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxxx X. XxXxxxxx, Xx.
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Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
NATIONAL CITY BANK OF PENNSYLVANIA,
as a Bank
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
BANCO DI NAPOLI,
as a Bank
By: /s/ Francesco Di Mario
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Name: Francesco Di Mario
Title: First Vice President
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
Amendment No. 3
dated as of March , 2001
