Exhibit 4.8
SECOND SUPPLEMENTAL INDENTURE, dated as of , 2001, between WEIRTON STEEL
CORPORATION, a Delaware corporation (the "Issuer"), and BANKERS TRUST COMPANY,
as trustee (the "Trustee").
RECITALS
The Issuer and the Trustee have heretofore executed and delivered an
Indenture dated as of June 12, 1995, as supplemented by a First Supplemental
Indenture dated as of August 12, 1996 (together, the "Indenture"), pursuant to
which the Issuer has heretofore issued its 10-3/4% Senior Notes due 2005, in the
aggregate principal amount of $125,000,000 (the "Securities");
Section 7.2 of the Indenture provides that the Issuer and the Trustee may,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Securities at the time outstanding, enter into an
indenture or indentures supplemental to the Indenture, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture;
The Issuer desires to amend or eliminate certain provisions of the
Indenture as hereinafter set forth; and
All acts and things necessary to amend the Indenture as aforesaid and to
make this Second Supplemental Indenture a valid agreement of the Issuer, in
accordance with its terms, have been done.
NOW, THEREFORE, this Second Supplemental Indenture Witnesseth:
ARTICLE I
AMENDMENTS
SECTION 1.01. Deletion of Certain Definitions.
(a) The following definitions in Section 1.1 of the Indenture are hereby
eliminated and deleted in their entirety as follows:
"Acquired Indebtedness"
"Asset Disposition"
"Asset Disposition Offer"
"Attributable Debt"
"Commodity Agreement"
"Consolidated EBITDA"
"Consolidated Fixed Charges"
"Consolidated Net Income"
"Consolidated Net Tangible Assets"
"Consolidated Net Worth"
"Consolidated Subsidiary"
"Currency Agreement"
"Disqualified Stock"
"Efficiency Program"
"Indebtedness"
"Interest Protection Agreement"
"Investments"
"Lien"
"Net Cash Proceeds"
"Net Income"
"Offer Amounts"
"Offer Period"
"Permitted Indebtedness"
"Permitted Joint Venture"
"Permitted Liens"
"Permitted Payments"
"Permitted Working Capital Indebtedness"
"Prohibited Investment"
"Property"
"Purchase Date"
"Refinancing Indebtedness"
"Restricted Payment"
SECTION 1.02. Deletion of Certain Covenants.
(a) The following covenants are hereby eliminated and deleted in their
entirety:
(i) Section 3.9. Limitations on Indebtedness.
(ii) Section 3.10. Limitations on Restricted Payments.
(iii) Section 3.11. Limitations on Transactions with Affiliates.
(iv) Section 3.12. Restrictions on Disposition of Assets of the Issuer.
(v) Section 3.13. Limitation on Liens.
(vi) Section 3.14. Limitations on Sale and Leaseback Transactions.
(vii) Section 3.15. Limitations on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
SECTION 1.03. Modification of the Definition of Change in Control.
(a) The definition of "Change of Control" in Section 3.16 of the Indenture
is hereby modified to read in its entirety as follows:
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As used herein, "Change of Control" means (i) any sale, lease or other
transfer (in one transaction or a series of transactions) of more than 75% of
the assets of the Issuer to any Person (other than a Wholly Owned Subsidiary of
the Issuer); (ii) a "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act (other than the 1984 ESOP, the 1989 ESOP or any
other employee benefit plan of the Issuer)) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of Capital Stock of the Issuer
representing more than 50% of the voting power of such Capital Stock, unless
such acquisition of beneficial ownership of shares of voting power of Capital
Stock of the Issuer occurs, directly or indirectly, in connection with the
financing of a Permitted Acquisition; (iii) Continuing Directors cease to
constitute at least a majority of the Board of Directors of the Issuer; or (iv)
the stockholders of the Issuer approve any plan or proposal for the liquidation
or dissolution of the Issuer.
(b) The following paragraph is hereby added to the end of Section 3.16:
As used herein, "Permitted Acquisition" means any one or more transactions
or series of transactions by the Issuer or a Subsidiary after the Issue Date,
whether effected by merger, consolidation, purchase, lease or other transfer of
assets or otherwise, to acquire the properties and related business (whether
through the direct purchase of assets or of the Capital Stock of the Person
owning such assets) of any other Person (i) where the Person to be acquired has
been engaged, or the assets involved have been deployed, in the business of
making, processing or distributing steel products, including without limitation
tin mill products or other coated steel products, (ii) the consummation of any
such transaction would not otherwise result in any Event of Default immediately
thereafter, and (iii) at the time of such transaction and giving effect thereto,
on a pro forma basis, the ratio of Consolidated EBITDA to Consolidated Fixed
Charges (as such terms are defined and calculated in the Indenture dated as of
January [ ], 2002 between the Issuer and The Chase Manhattan Bank) for the four
fiscal quarters immediately preceding such event for which financial information
is available consistent with the Issuer's prior practice, taken as one period
and calculated on the assumption that all Indebtedness had been incurred on the
first day of such period and that the related Permitted Acquisition and all its
adjustments being included in such pro forma calculation had also occurred on
such date, would not be reduced.
SECTION 1.04. Modification of Covenants.
(a) Section 4.1 of the Indenture is hereby modified to read in its entirety
as follows:
Section 4.1. Event of Default Defined; Acceleration of Maturity; Waiver of
Default. In case one or more of the following Events of Default (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing, that
is to say:
(a) default in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any part of the principal on any
of the Securities as and when the same shall become due and payable either
at maturity, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer contained in
the Securities or in this Indenture for a period of 60 days after the date
on which written notice specifying such failure, stating that such notice
is a "Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee
by the holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding; or
(d) [INTENTIONALLY DELETED]
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors.
Then, and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities
then outstanding hereunder, by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal of all
the Securities and the interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. This provision, however, is subject to the condition that if, at
any time after the principal of the Securities shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities and the principal of any and
all Securities which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest specified in the Securities, to the date of
such payment or deposit) and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein--then and in every such case the holders of a
majority in
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the aggregate principal amount of the Securities then outstanding,
by written notice to the Issuer and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
(b) Section 8.1 of the Indenture is hereby modified to read in its entirety
as follows:
Section 8.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions. The Issuer will not consolidate or merge with
or into, or sell, lease, convey or otherwise dispose of all or substantially all
of its assets (as an entirety or substantially an entirety in one transaction or
a series of related transactions) to, any Person (other than a merger with or
into a Wholly Owned Subsidiary; PROVIDED that such Wholly Owned Subsidiary is
not organized in a foreign jurisdiction) unless: (a) the entity formed by or
surviving any such consolidation or merger (if other than the Issuer), or to
which sale, lease, conveyance or other disposition shall have been made (the
"Surviving Entity"), is a corporation organized and existing under the laws of
the United States, any state thereof or the District of Columbia; (b) the
Surviving Entity assumes by supplemental indenture all of the obligations of the
Issuer on the Securities and this Indenture in form and substance satisfactory
to the Trustee; and (c) immediately after the transaction, no Default or Event
of Default shall have occurred and be continuing.
ARTICLE II
OPERATIVE DATE
SECTION 2.01. Operative Date of Amendments to Indenture. After (i) the
holders of at least a majority in aggregate principal amount of the Securities
outstanding have consented to the amendments set forth in Article I hereof ,
(ii) the receipt by the Trustee of a certificate signed by two officers of the
Issuer in accordance with the Indenture certifying that the requisite consents
have been obtained; and (iii) the receipt of such other certificates and
opinions regarding the due execution and delivery of this Second Supplemental
Indenture by the Issuer as the Trustee may reasonably request pursuant to the
Indenture, the amendments set forth in Article I will become operative upon the
date the Issuer accepts all Securities that are validly tendered (and not
withdrawn) for exchange pursuant to the offer to exchange and consent
solicitation conducted pursuant to the Company's Offer to Exchange and Consent
Solicitation dated [ ].
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Execution as Supplemental Indenture. This Second Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Indenture and, as provided in the Indenture, this Supplemental Indenture shall
form a part of the Indenture. Except as herein expressly otherwise defined, the
terms used herein shall have the same meaning as provided in the Indenture.
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SECTION 3.02. Responsibility for Recitals. The recitals herein shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness thereof.
SECTION 3.03. Successors and Assigns. All the covenants and agreements in
this Second Supplemental Indenture contained by the Issuer shall bind its
successors and assigns whether so expressed or not.
SECTION 3.04. Governing Law. This Second Supplemental Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the state of New York (without giving effect to the conflict of laws principles
thereof).
SECTION 3.05. Counterparts. This Second Supplemental Indenture 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.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be, duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
WEIRTON STEEL CORPORATION
By:
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Name:
Title:
ATTEST:
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Name:
Title:
BANKERS TRUST COMPANY
By:
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Name:
Title:
ATTEST:
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Name:
Title:
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