Exhibit 4.10
FORM OF
AMENDMENT NUMBER 1
TO LOAN AGREEMENT
THIS AMENDMENT NUMBER 1 TO LOAN AGREEMENT (this "Amendment") is made as
of this ___ day of _____, 2002 by and between the CITY OF WEIRTON, WEST
VIRGINIA, a public corporation and an incorporated municipality duly organized
and existing under the Constitution and laws of the State of West Virginia (the
"Issuer"), and WEIRTON STEEL CORPORATION, a Delaware corporation (the
"Company").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of that certain Indenture of Trust dated
as of November 1, 1989 (the "Original Indenture") by and between the Issuer and
Pittsburgh National Bank, as Trustee (the "Original Trustee") and that certain
Loan Agreement dated as of November 1, 1989 (the "Original Agreement") by and
between the Company and the Issuer, the Issuer has issued its Pollution Control
Revenue Refunding Bonds (Weirton Steel Corporation Project) Series 1989 in the
original aggregate principal amount of $56,300,000 (the "Series 1989 Bonds");
WHEREAS, X.X. Xxxxxx Trust Company, National Association (the
"Trustee") has, pursuant to Section __ of the Original Indenture, succeeded to
the interests of the Original Trustee, and has become the successor trustee
under the terms of the Original Indenture;
WHEREAS, the Issuer has assigned its right, title, and interest in the
Original Agreement (except the Issuer's rights under Sections 4(b) and (c), 6.2
and 7.4 thereof) to the Trustee, as contemplated by the Original Indenture and
the Original Agreement, and the Company has consented to such assignment;
WHEREAS, pursuant to the provisions of Section 9.6 of the Original
Agreement and Section 10.02 of the Original Indenture, the Issuer and the
Company desire to amend or eliminate certain provisions of the Original
Agreement with the consent of the Issuer and Trustee and the approval or consent
of not less than sixty-six and two-thirds percent (66-2/3%) of the holders of
the Series 1989 Bonds;
WHEREAS, the Issuer and Trustee have consented to the provisions of
this Amendment and agreed to provide written evidence of such consent in
accordance with the provisions of Section 9.6 of the Original Agreement and
Section 10.02 of the Original Indenture;
WHEREAS, all acts and things necessary to amend the Original Agreement
as aforesaid and to make this Amendment a valid agreement, in accordance with
its terms, have been done;
WHEREAS, the Issuer proposes to finance the refunding of all or a
portion of the Series 1989 Bonds by the issuance of its Secured Pollution
Control Revenue Refunding Bonds (Weirton Steel Corporation Project) Series 2002
(the "Secured Series 2002 Bonds") pursuant to
an Indenture of Trust (the "2002 Indenture") to be entered into by the Issuer
and X.X. Xxxxxx Trust Company, National Association, as trustee;
WHEREAS, the Issuer proposes to refund all or a portion of the Series
1989 Bonds by exchanging them for its Secured Series 2002 Bonds (the "Bond
Exchange"); and
WHEREAS, after giving effect to the Bond Exchange, the aggregate
principal amount of the loan under the Original Agreement has been reduced by an
amount equal to the aggregate principal amount of the Series 1989 Bonds tendered
in the Bond Exchange; and
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereafter contained, the parties hereby agree as follows.
1. Recitals. Each and all of the foregoing recitations are true and
correct and are incorporated herein by reference and made a part hereof.
2. Capitalized Terms. All initially capitalized terms used in this
Amendment unless otherwise specifically defined herein shall have the respective
meanings assigned to such terms in the Original Agreement.
3. Modification of Original Agreement.
(a) Deletion of Certain Covenants. The following Sections of
the Original Agreement are hereby eliminated and deleted in their
entirety:
(i) Section 5.5 Limitations on Liens.
(ii) Section 5.6 Limitations on Sale and Leaseback
Transactions.
(b) Modification of Events of Default Provision. Section
7.1(a) of the Original Agreement is hereby modified and amended to read
in its entirety as follows:
Section 7.1. Events of Default Defined.
(a) The following shall be "Events of Default" under this
Agreement and the terms "Event of Default" and
"Default" shall mean, whenever they are used in this
Agreement, any one or more of the following events:
(i) Failure by the Company to pay the amounts
required to be paid under Sections 4.2(a) or (f)
hereof at the time specified therein.
(ii) Failure by the Company to comply with any of its
other agreements herein and such default continues
for sixty (60) days after notice from the Issuer, the
Trustee or the Holders of at least twenty-five
percent (25%) in aggregate principal amount of the
Bonds.
2
(III) [INTENTIONALLY DELETED]
(iv) The Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case; or
(B) consents to the entry of an order for
relief against it in an involuntary case; or
(C) consents to the appointment of a
Custodian of it or for all or substantially
all of its property; or
(D) makes a general assignment for the
benefit of its creditors; or
(v) A court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case; or
(B) appoints a Custodian of the Company for
all or substantially all of its property; or
(C) order the liquidation of the Company;
and the order or decree remains unstayed and
in effect for 60 days.
4. Bond Exchange. The Issuer, Trustee and Company hereby acknowledge
and agree that, if the Bond Exchange is consummated, after giving effect to the
Bond Exchange, (i) the aggregate principal amount of the loan under the Original
Agreement shall have been permanently reduced by an amount equal to the
aggregate principal amount of the Series 1989 Bonds tendered in the Bond
Exchange, and (ii) Series 1989 Bonds tendered in exchange for Secured Series
2002 Bonds (the "Tendered Bonds") shall no longer be deemed Outstanding (as
defined in the Original Indenture) under the terms of the Original Indenture ,
and (iii) all accrued and unpaid interest on the Tendered Bonds through the date
that the Bond Exchange is consummated shall be waived and extinguished.
5. Effectiveness of Amendment to Original Agreement. This Amendment
shall become effective on and as of the later of (i) the date the counterparts
hereto shall have been executed by each of the parties hereto or (ii) the date
the Trustee receives the approval or consent of the Holders (as defined in the
Original Indenture) of not less than sixty-six and two-thirds percent (66-2/3%)
in aggregate principal amount of Series 1989 Bonds at the time Outstanding, and
shall become operative on and as of the date of the consummation of the Bond
Exchange.
6. Amendment. This Amendment is executed and shall be construed as an
amendment to the Original Agreement, which shall continue in full force and
effect except to the extent expressly modified or amended by this Amendment.
3
7. Ratification of Original Agreement. Except as expressly modified and
amended herein, Company covenants and agrees that all of the terms, covenants
and conditions of the Company under the Original Agreement shall remain in full
force and effect. The Company hereby ratifies and confirms each of its
obligations under the Original Agreement, as hereby modified.
8. Successors and Assigns. This Amendment shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and assigns.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of West Virginia.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Issuer has caused this Amendment to be
executed in its corporate name and with its official seal hereunto affixed and
attested by its duly authorized officials and the Company has caused this
Amendment to be executed in its corporate name with its corporate seal hereunto
affixed and attested by its duly authorized officers, and the Trustee has caused
this Amendment to be executed in its corporate name with its corporate seal
affixed and attested by its duly authorized officers, all of the above occurred
as of the date first above written.
[SEAL] CITY OF WEIRTON, WEST VIRGINIA
Attest: By
------------------------------------
Mayor
By
-----------------------------
City Clerk
[SEAL] WEIRTON STEEL CORPORATION
Attest: By
------------------------------------
Name:
Title:
By
-----------------------------
Secretary
[SEAL] X.X. XXXXXX TRUST COMPANY
Attest: By
------------------------------------
Name:
Title:
By
-----------------------------
Secretary
4
