EXHIBIT 4.5
AMENDMENT NO. 4 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
February 19, 2003
Weirton Steel Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Ladies and Gentlemen:
Reference is made to the Amended and Restated Loan and Security
Agreement dated as of May 3, 2002 by and among Weirton Steel Corporation
("Borrower"), the lenders from time to time party thereto (the "Lenders"), Fleet
Capital Corporation, individually as a Lender, and as agent for the Lenders (the
"Agent"), Foothill Capital Corporation, individually as a Lender, and as
Syndication Agent for the Lenders, The CIT Group/Business Credit, Inc.,
individually as a Lender, and as a Documentation Agent for the Lenders, GMAC
Business Credit, LLC, individually as a Lender, and as a Documentation Agent for
the Lenders and Fleet Securities, Inc., as lead arranger (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings provided to such terms in the Loan Agreement.
Borrower has requested that Majority Lenders agree to amend the
Loan Agreement in order to permit the Borrower to (a) sell certain allowances
available to Borrower in respect of nitrogen oxide emissions, and (b) amend its
Certificate of Incorporation in order to establish and permit the issuance of
Series D preferred stock in connection with Borrower's renegotiation of its
union contracts. Majority Lenders have agreed to the foregoing, on the terms and
conditions set forth herein. Therefore, Majority Lenders hereby agree as
follows:
1. Amendments. The Loan Agreement is hereby amended as
follows:
(a) Subsection 7.1.4 of the Loan Agreement is hereby amended
as follows:
(i) Clause (iv) thereof is hereby amended and restated in
its entirety as follows:
"as of the most recent practicable date prior to the Closing
Date, the number of authorized and issued Securities of Borrower"
(ii) The third sentence thereof is hereby amended and
restated in its entirety as follows:
"All of the Securities of the Borrower and each of its
Subsidiaries have been duly issued and are fully paid and
non-assessable, except for (a) Borrower's Series C Preferred, which will
be issued in connection with the Permitted Note Exchange Offer and will
be fully paid and non-assessable when so issued and (b) Borrower's
Series D Preferred, which will be issued in connection with the Union
Contract Transaction and will be fully paid and non-assessable when so
issued."
(b) Subsection 8.2.3 of the Loan Agreement is hereby amended
by (i) deleting the word "and" from the end of clause (xiv) thereof and (ii)
inserting the following immediately after clause (xv) thereof and before the
period:
"; and
(xvi) after the completion of the Union Contract Transaction,
Indebtedness in respect of the Series D Preferred."
(c) Subsection 8.2.6 of the Loan Agreement is hereby amended
by (i) deleting the word "and" from the end of clause (vi) thereof and (ii)
inserting the following immediately after clause (vii) thereof and before the
period:
"; and
(viii) amend or modify in any respect the terms of the Series D
Preferred from the terms set forth on Exhibit B or exercise any exchange
or conversion rights with respect to the Series D Preferred; provided,
that the foregoing shall not prevent the exchange by Borrower of all or
any of the Series D Preferred for common stock Securities of Borrower as
provided in the Series D Preferred;"
(d) Section 8.2.7 of the Loan Agreement is hereby amended by
(i) deleting the word "and" from the end of clause (iii) thereof and (ii)
inserting the following immediately after clause (iv) thereof and before the
period:
"; and
(v) the following Distributions in respect of the Series D
Preferred, all on the terms provided in the Series D Preferred: (a)
Distributions in the form of common stock Securities of Borrower or
additional Series D Preferred and constituting "Contingent Value
Payments"; (b) optional redemption of the Series D Preferred in exchange
for common stock Securities of Borrower; (c) mandatory redemption of the
Series D Preferred upon maturity thereof on March 31, 2015 in exchange
for common stock Securities of Borrower; (d) redemption of the Series D
Preferred upon the occurrence of a "Significant
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Transaction" (as defined in the Series D Preferred) in exchange for
common stock Securities of Borrower; and (e) Distributions permitted
pursuant to subsection 8.2.6(viii)."
(e) Subsection 8.2.9(xi) of the Loan Agreement is hereby
amended and restated in its entirety, as follows:
"(xi) the disposition of up to 500 nitrogen oxide emissions
allowances at fair market value and in compliance with applicable laws,
during the period commencing on February 19, 2003 and ending on August
31, 2003, so long as the cash proceeds thereof are promptly delivered to
Agent for application against the then outstanding principal balance of
the Revolving Credit Loans; and"
(f) Subsection 8.2.15 of the Loan Agreement is hereby
amended and restated in its entirety, as follows:
"8.2.15. Organizational Documents. Other than (i) the amendment
to Borrower's certificate of incorporation on or prior to the Effective
Date as necessary to establish the Series C Preferred, in the form
attached hereto as Exhibit 8.2.15, and (ii) the amendment to Borrower's
certificate of incorporation on or prior to the effective date of the
Union Contract Transaction as necessary to establish the Series D
Preferred, in the form attached hereto as Exhibit B, agree to, or suffer
to occur, any amendment, supplement or addition to its or any of its
Subsidiaries' charter, articles or certificate of incorporation,
certificate of formation, limited partnership agreement, bylaws, limited
liability agreement, operating agreement or other organizational
documents (as the case may be), that would reasonably be expected to
have a Material Adverse Effect."
(g) The definition of the term Change of Control contained
in Appendix A to the Loan Agreement is hereby amended and restated in its
entirety, as follows:
"Change of Control - any Person (other than the trusts under
Borrower's Stock Plans or the holders of Series D Preferred as a result
of the exchange or conversion of such Series D Preferred to common stock
Securities of Borrower) shall own or control either (i) more than 50% of
the aggregate issued and outstanding Voting Stock of Borrower or (ii) a
sufficient percentage of the issued and outstanding Voting Stock of
Borrower to elect or control the majority of the board of directors of
Borrower; or Borrower shall fail to own and control 100% of the
Securities of its Subsidiaries; or a "Change of Control" (as is defined
in the Exchange Note Indenture, as it exists on the Effective Date)
shall have occurred; or a "Significant Transaction" (as defined in the
Series D Preferred) shall have occurred."
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(h) The following definitions are hereby added to Appendix A
to the Loan Agreement, in appropriate alphabetical order:
"Series D Preferred - Borrower's Series D Preferred Stock issued
in connection with the Union Contract Transaction, which, among other
things, is unsecured, has no voting rights or put rights, is not
mandatorily redeemable prior to March 1, 2015 and has other terms
similar to those set forth on Exhibit B in all material respects.
Union Contract Transaction - the ratification and
effectiveness of settlement agreements leading to new collective
bargaining agreements between Borrower and its unions, which contain
terms substantially similar to those previously disclosed in writing to
Agent and Lenders."
(i) A new Exhibit B is hereto added to the Loan Agreement in
the form of Exhibit B attached hereto.
2. Representations and Warranties. Borrower hereby
represents and warrants to Lenders that after giving effect to the transactions
contemplated hereby:
(a) there is no Default or Event of Default currently in
existence; and
(b) the representations and warranties of Borrower contained
in the Loan Agreement, as amended hereby, and the other Loan Documents,
are true and correct in all material respects as of the date hereof,
with the same effect as though made on the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are true
and correct in all material respects as of such earlier date.
3. Condition to Effectiveness. This Amendment No. 4 to
Amended and Restated Loan and Security Agreement (the "Amendment") shall be
effective upon the execution hereof by Majority Lenders, acceptance hereof by
Borrower, and delivery hereof to Agent on or before February 19, 2003.
4. Scope. Except as expressly amended by this Amendment,
the terms of the Loan Agreement shall remain in full force and effect as
executed.
5. Counterparts. This Amendment and all other documents and
agreements provided for herein or delivered or to be delivered hereunder or in
connection herewith may be executed in any number of counterparts, and by the
parties hereto and/or thereto on the same or separate counterparts, and each
such counterpart, when executed and delivered, shall be deemed an original, but
all such counterparts shall together constitute but one and the same agreement
or document, as applicable.
[SIGNATURE PAGE FOLLOWS]
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Very truly yours,
FLEET CAPITAL CORPORATION,
as Agent and as a Lender
By /s/Xxx Xxxxxx
Title Sr. Vice President
Revolving Loan Commitment: $50,000,000
FOOTHILL CAPITAL CORPORATION,
as Syndication Agent and as a Lender
By /s/Xxx Xxxx
Title Asst. Vice President
Revolving Loan Commitment: $50,000,000
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Documentation Agent and as a Lender
By /s/Xxxxx Andricopuloz
Title Vice President
Revolving Loan Commitment: $50,000,000
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GMAC BUSINESS CREDIT, LLC,
as a Documentation Agent and as a Lender
By
----------------------------------------
Title
-------------------------------------
Revolving Loan Commitment: $35,000,000
TRANSAMERICA BUSINESS
CAPITAL CORPORATION, as a Lender
By /s/Xxxxx Xxxxxxx
Title Vice President
Revolving Loan Commitment: $15,000,000
Acknowledged and agreed to as of
this 18th day of February, 2003.
WEIRTON STEEL CORPORATION
By /s/ Xxxxx X. Xxxxx
Its Treasurer
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