EXECUTION COPY
WAIVER, CONSENT AND
AMENDMENT NO. 3 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 30, 1997
WAIVER, CONSENT AND AMENDMENT NO. 3 TO THE SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (this "AMENDMENT") is entered into by
WHEELING-PITTSBURGH STEEL COMPANY, a Delaware corporation (the "BORROWER"), the
banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "LENDERS") and CITIBANK,
N.A., as agent (the "AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, Agent and Issuing Bank have
entered into a Second Amended and Restated Credit Agreement dated as of December
28, 1995 (as amended, supplemented or otherwise modified through the date
hereof, the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined in this
Amendment have the meanings specified in the Credit Agreement.
(2) Wheeling-Pittsburgh Corporation, a Delaware corporation
("HOLDINGS"), has entered into negotiations to refund and replace the Permanent
Financing Notes as more particularly described in Exhibit A hereto (the
"REPLACEMENT TRANSACTION").
(3) The Borrower and the Lenders have agreed to amend the
Credit Agreement as hereinafter set forth to, among other things, permit the
Replacement Transaction, as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.1 is amended by (i) amending the definition of
"EBITDA" in full to read as follows:
"EBITDA" means, for any Person for any
period, the EBITDA for such Person for such period PLUS (a)
any increase in the long term liability in respect of other
post-employment benefit or pension benefit that would be
reflected on a consolidated balance sheet of such Person and
its Subsidiaries (the "EMPLOYEE LIABILITY") for such period
and (b) any decrease in pension
asset that would be reflected on a consolidated balance sheet
of such Person and its Subsidiaries (the "PENSION ASSET") for
such period LESS (a) any decrease in the Employee Liability
for such period and (b) any increase in the Pension Asset for
such period.
(ii) amending the definition of "INDENTURES" in full to read
as follows:
"INDENTURES" means the Replacement Indenture.
(iii) adding the following definitions in proper alphabetical
sequence:
"REPLACEMENT INDENTURE" means the indenture
incorporating terms and conditions no less favorable to
Holdings than those terms and conditions set forth in Exhibit
S hereto to be entered into to refinance the Permanent
Financing Notes, between Holdings and the trustee thereunder,
pursuant to which the Replacement Notes are issued, as the
same may be amended, supplemented or modified from time to
time.
"REPLACEMENT NOTES" means Holding's market
rate senior notes with a term of not less than five years,
issued pursuant to the Replacement Indenture.
(b) Section 3.3(e) is amended by deleting the date October 31,
1997 and the amount set opposite such date.
(c) Section 4.11 is amended in full to read as follows:
4.11. REPLACEMENT NOTES. The Replacement
Indenture has not been amended or modified since its effective
date in any respect that imposes terms and conditions less
favorable to Holdings that the description of the terms and
conditions set forth on Exhibit S hereto and no provision
therein has been waived and no event has occurred or condition
exists under the Replacement Notes, the effect of such event
or condition is to accelerate or permit the acceleration of
the maturity of the Replacement Notes.
(d) Section 4.12 (a) is amended by deleting the parenthetical
phrase in clause (iii) thereof and replacing it with the following:
(except a non-payment default on any of the Replacement Notes,
the effect of which is not to accelerate or permit the
acceleration of the maturity of the Replacement Notes)
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(e) Section 5.1 is amended by deleting the amounts set
opposite the following dates and substituting therefor the amount set
forth below opposite each such date:
September 30, 1997 315,000,000
December 31, 1997 320,000,000
March 31, 1998 320,000,000
June 30, 1998 325,000,000
September 30, 1998 330,000,000
December 31, 1998 330,000,000
(f) Section 5.2 is amended by deleting the ratios set opposite
the following dates and substituting therefor the ratio set forth below
opposite each such date:
September 30, 1997 4.00:1.00
December 31, 1997 4.00:1.00
March 31, 1998 3.90:1.00
June 30, 1998 3.90:1.00
September 30, 1998 3.80:1.00
December 31, 1998 3.80:1.00
(g) Section 5.3 is amended by deleting the ratios set opposite
the following dates and substituting therefor the word or ratio set
forth below opposite each such date:
September 30, 1997 none
December 31, 1997 none
March 31, 1998 none
June 30, 1998 0.05:1.00
September 30, 1998 1.70:1.00
December 31, 1998 1.40:1.00
(h) Section 5.4 is amended by deleting the amounts set
opposite the following dates and substituting therefor the amount set
forth below opposite each such date:
September 30, 1997 (125,000,000)
December 31, 1997 (130,000,000)
March 31, 1998 (120,000,000)
June 30, 1998 (115,000,000)
September 30, 1998 (100,000,000)
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December 31, 1998 (100,000,000)
(i) Section 5.5 is amended by deleting the amounts set
opposite the following dates and substituting therefor the amount set
forth below opposite each such date:
September 30, 1997 75,000,000
December 31, 1997 85,000,000
March 31, 1998 95,000,000
June 30, 1998 105,000,000
September 30, 1998 130,000,000
December 31, 1998 150,000,000
(j) Section 6.11(h) is amended in full to read as follows:
(h) promptly after the sending or filing
thereof, copies of all notices, certificates or report
delivered by Holdings pursuant to the Indentures or to holders
of the Replacement Notes;
(k) Section 7.1(c) is amended in full to read as follows:
(c) Liens on the Collateral (as defined in
each of the Indentures) securing the guaranty, if any, by any
Loan Party under the Replacement Notes;
(l) Section 7.2 is amended by (i) amending clause (l) in full
to read as follows:
(l) Indebtedness constituting a renewal,
extension, refinancing or refunding of Indebtedness described
in Sections 7.2(d), (g) and (n), (i) for a principal amount
not in excess of the principal amount of such Indebtedness,
(ii) in the case of Indebtedness described in Sections 7.2(d)
and 7.2(g), on other terms and conditions as or more favorable
to the Borrower, any Guarantor and their Subsidiaries than the
terms of the indebtedness being renewed, extended or refunded
and (iii) in the case of Indebtedness described in Section
7.2(n), on other terms and conditions as or more favorable to
the Borrower, any Guarantor and their Subsidiaries than those
set forth in Exhibit S hereto; PROVIDED, HOWEVER, that the
aggregate principal amount of all such Indebtedness incurred
by Holdings shall not exceed $350,000,000; and
(ii) inserting immediately after clause (m)
a new clause (n) to read "(n) Indebtedness of
Holdings arising under the Replacement Notes".
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(m) Section 7.10(b) is amended in full to read as follows:
(b) the guaranty, if any, by any Loan Party
of the Replacement Notes or any renewal, extension,
refinancing or refunding thereof for a principal amount not in
excess of the Replacement Notes outstanding at such time and
on the terms and conditions as or more favorable to Holdings,
the Borrowers and it Subsidiaries;
(n) Section 8.1(o) is amended by (i) deleting from clause (i)
thereof the words "the First Mortgage Notes, the Permanent Financing
Notes" and substituting therefor the words "the Replacement Notes" and
(ii) deleting from clause (iii) thereof the words "any First Mortgage
Note, any Permanent Financing Note" and substituting therefor the words
"any Replacement Note".
(o) Schedule II to the Credit Agreement is amended by deleting
the amounts set opposite the following Lenders and substituting
therefor the commitment amounts set forth below opposite each such
Lender:
Name of Lender Commitment
-------------- ----------
Citicorp USA, Inc. $29,000,000
BankAmerica Business Credit, Inc. $29,000,000
CoreStates Bank, N.A. $29,000,000
Star Bank, N.A. $20,000,000
NationsBank, N.A. $25,000,000
National City Commercial Finance, Inc. $18,000,000
(p) A new Exhibit S is added to the Credit Agreement to read
as set forth as Exhibit B to this Amendment.
SECTION 2. WAIVER AND CONSENT. Subject to the satisfaction of
the conditions precedent set forth in Section 3, the Majority Lenders hereby
consent to the repayment of the Holdings Note and other intercompany
Indebtedness in an aggregate amount not to exceed the excess of the net cash
proceeds of the Replacement Notes over the aggregate amount of Indebtedness
outstanding under the Permanent Financing Notes and, in furtherance thereof,
agree to waive Section 2 of the Holdings Intercreditor Agreement and Section
7.11 of the Credit Agreement, in each case to the extent required to permit such
repayments.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective as of the date first above written on the Business Day when,
and only when, the following conditions shall have been satisfied:
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(a) The Agent shall have received counterparts of this
Amendment executed by the Borrower, each other Loan Party, each Lender
with an increased commitment as set forth in Section 1(o) above and the
Majority Lenders or, as to any of the Lenders, advice satisfactory to
the Agent that such Lenders have executed this Amendment.
(b) The Agent shall have received a certificate signed by a
duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in
the Credit Agreement and each Loan Document are correct on and
as of the date of such certificate as though made on and as of
the date hereof other than any such representations or
warranties that, by their terms, refer to a date other than
the date of such certificate; and
(ii) No event has occurred and is continuing that
constitutes a Default or an Event of Default.
(c) The Borrower shall have paid to the Agent for the ratable
benefit of the Lenders an amendment fee equal to 0.125% of the
aggregate Revolving Credit Commitments of all Lenders, calculated
without giving effect to Section 1(h) of this Amendment.
The effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions of
Section 10.1 of the Credit Agreement.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a)
On and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in each of the Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and each of the Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender, the Agent, or the Issuing Bank under
the Credit Agreement or any Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any Loan Document.
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SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 10.4(a) of the Credit
Agreement.
SECTION 6. 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER
WHEELING-PITTSBURGH STEEL
CORPORATION
By:_______________________________
Name:
Title:
AGENT
CITIBANK, N.A., as Agent
By:_______________________________
Name:
Title:
LENDERS
CITICORP USA, INC.
By:_______________________________
Name:
Title:
CORESTATES BANK, N.A.
By:_______________________________
Name:
Title:
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BANKAMERICA BUSINESS CREDIT, INC.
By:_______________________________
Name:
Title:
STAR BANK, N.A.
By:_______________________________
Name:
Title:
NATIONSBANK, N.A.
By:_______________________________
Name:
Title:
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By:_______________________________
Name:
Title:
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CONSENTED TO AND ACKNOWLEDGED:
WHEELING-PITTSBURGH CORPORATION
By:_______________________________
Name:
Title:
WHEELING CONSTRUCTION PRODUCTS,
INC.
By:_______________________________
Name:
Title:
PITTSBURGH-XXXXXXXX CORPORATION
By:_______________________________
Name:
Title:
UNIMAST INCORPORATED
By:_______________________________
Name:
Title:
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