Exhibit 10.16
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of June 23, 2004 (this "First Amendment"), to
the Revolving Loan Agreement, dated as of July 31, 2003 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Wheeling-Pittsburgh Corporation ("Holdings"), Wheeling-Pittsburgh Steel
Corporation (the "Borrower"), the Lenders party to the Credit Agreement, the
agents named therein and Royal Bank of Canada, as administrative agent (in such
capacity, the "Administrative Agent"). Terms defined in the Credit Agreement
shall be used in this First Amendment with their defined meanings unless
otherwise defined herein.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings, the Borrower, the Lenders and the Administrative Agent
are parties to the Credit Agreement;
WHEREAS, Holdings intends to sell newly issued Capital Stock through one
or more offerings in the capital markets (each an "Equity Offering" and
collectively, the "Equity Offerings"), and Holdings and the Borrower have agreed
with the Term Loan Lenders to apply the net cash proceeds thereof in the
following order: (i) first, to reduce the principal amount of the Revolving
Credit Advances to zero (excluding any letters of credit then outstanding under
the Revolving Loan Agreement); (ii) second, to the extent of any excess, to
Capital Expenditures to be made on or after the date of such Equity Offering,
provided that (A) any net cash proceeds so allocated to Capital Expenditures are
deposited on the date of such Equity Offering (or the following Business Day in
the event the net cash proceeds from the Equity Offering are received after 2:00
p.m., New York City time) in a segregated account (the "Capital Expenditure
Deposit Account") as to which the deposit bank has executed a control agreement
in favor of the Collateral Agent for the benefit of the Secured Parties (as
defined in the Security Agreement), (B) all Capital Expenditures made with
amounts withdrawn from the Capital Expenditure Deposit Account are expended
pursuant to and in accordance with limitations set forth in the Credit
Agreement, and (C) no more than $35,000,000 of net cash proceeds from all Equity
Offerings are so allocated to Capital Expenditures; and (iii) third, to the
extent of any excess, to prepay the principal amount of the Term Loans;
WHEREAS, the Borrower has requested that the Lenders agree to make certain
amendments relating to the Credit Agreement as set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendments, in each case
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, Holdings, the Borrower, the Lenders and the Administrative
Agent hereby agree as follows:
SECTION I. AMENDMENTS.
1. Amendments to Annex A (Definitions). Annex A of the Credit Agreement is
hereby amended by:
(a) inserting the following new definitions in appropriate alphabetical
order:
""Capital Expenditure Deposit Account": as defined in the First
Amendment."
""Coke Facility Refurbishment Project": the refurbishment
of the No. 8 coke battery located in Follansbee, West Xxxxxxxx to
be undertaken and completed in accordance with the project
description set forth in Schedule 1.5."
""First Amendment": the First Amendment to this Agreement,
dated as of June 23, 2004, among Holdings, the Borrower, the Lenders
party thereto, the agents party thereto and the Administrative
Agent."
(b) amending the definition "Consolidated Fixed Charge Coverage
Ratio" in its entirety to read as follows:
""Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) (i) the sum (without duplication) of Consolidated
EBITDA for such period and Consolidated Lease Expense for such
period less (ii) the aggregate amount actually paid by Holdings and
its Subsidiaries during such period on account of Capital
Expenditures (excluding Capital Expenditures (i) funded from or
reimbursed by amounts on deposit in the Cash Collateral Account or
Capital Expenditure Deposit Account or (ii) made in accordance with
Section 6.7(d)) to (b) Consolidated Fixed Charges for such period."
2. Amendments to Section 6.7 (Capital Expenditures). Section 6.7 of the
Credit Agreement is hereby amended by:
(a) inserting a new paragraph between existing paragraphs (c) and
(d) (and relettering existing paragraph (d) as new paragraph (e)) as
follows:
"(d) Capital Expenditures relating to the Coke Facility
Refurbishment Project in an aggregate amount not to exceed
$85,000,000, provided that not more than $18,000,000 in the
aggregate may be expended on the Coke Facility Refurbishment Project
prior to January 1, 2006; and"; and
(b) inserting the words ", the Coke Facility Refurbishment Project"
immediately after the words "the Allenport Cold Mill Improvements" in
newly relettered paragraph (e).
3. Schedule 1.5. The Credit Agreement is hereby amended by including as
new Schedule 1.5 to the Credit Agreement the information set forth in Schedule A
attached to this First Amendment.
SECTION II. MISCELLANEOUS.
1. Representations and Warranties. (a) Each of Holdings and the Borrower
hereby confirms, reaffirms and restates the representations and warranties set
forth in Section 3 of the Credit Agreement. Each of Holdings and the Borrower
represents and warrants that, after giving effect to this First Amendment, no
Default or Event of Default has occurred and is continuing.
(b) Each of Holdings and the Borrower represents that the audited
consolidated balance sheets of Holdings as at December 31, 2003, and the related
consolidated statements of income and of cash flows for the period ended on such
date, reported on and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly the consolidated financial condition
of Holdings as at such date, and the consolidated results of its operations and
its consolidated cash flows for the period then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein).
2. Effectiveness. This First Amendment shall become effective as of and on
the date on which the following conditions precedent shall have been satisfied
(the "First Amendment Effective Date"):
(a) Consent; First Amendment. The Administrative Agent shall have
received counterparts hereof duly executed by Holdings, the Borrower, the
Administrative Agent and the Requisite Lenders.
(b) Fees. The Administrative Agent shall have received payment of
(i) an amendment fee for the account of each Lender which delivers its
executed signature page hereto to the Administrative Agent on or prior to
5:00 P.M., New York City time, on Wednesday, June 23, 2004, in the amount
set forth in the Fee Letter, dated as of June 22, 2004, between the
Borrower and the Administrative Agent and (ii) all expenses required to be
paid on or before the First Amendment Effective Date for which invoices
have been timely presented, including, without limitation, the reasonable
fees and expenses of legal counsel.
(c) Legal Opinion. The Administrative Agent shall have received a
legal opinion addressed to the Administrative Agent and the Lenders from
Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to Holdings, the Borrower and their
Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent.
3. No Change. Except as expressly provided herein, no term or provision of
the Credit Agreement shall be amended, modified, supplemented or waived, and
each term and provision of the Credit Agreement shall remain in full force and
effect.
4. Counterparts. This First Amendment may be executed by the parties
hereto in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
5. Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
WHEELING-PITTSBURGH CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Treasurer
ROYAL BANK OF CANADA, as Administrative
Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Manager, Agency
ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Attorney-In-Fact
Royal Bank of Canada
(SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT)
GENERAL ELECTRIC CAPITAL CORPORATION, as
Inventory and Receivables Security Agent
and as a Lender
By: /s/ Xxxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Duly Authorized Signatory
(SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT)
The CIT Group/Business Credit Line
------------------------------------------
Name of Lender
By: /s/ Xxxxxx Xxxxx XxXxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx XxXxxxxx
Title Vice President
(SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT)
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title First Vice President
Name of Lender: FLEET CAPITAL CORP.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: XXXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
(SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT)
Bank One, NA
---------------------------------
Name of Lender
By: /s/ Xxxx Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
Title: Director
ORIX FINANCIAL SERVICES, INC.
Name of Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
(Signature Page is First Amendment to Revolving Loan Agreement)
