EXHIBIT 4.4
AMENDMENT NO. 3 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
January 8, 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, 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 (i)
subsection 8.1.3(i) of the Loan Agreement to permit Borrower's audited financial
statements for the 2002 Fiscal Year to contain a going concern qualification and
(ii) the definition of the term Restricted Investment contained in Appendix A to
the Loan Agreement in order to permit Borrower to hold certain stock of Metals
USA Inc. to be received by Borrower under Metals USA Inc.'s plan of
reorganization. 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 8.1.3(i) is hereby amended and restated in
its entirety as follows:
"(i) not later than 90 days after the close of each fiscal
year of Borrower, unqualified (except for a qualification for a change
in accounting principles with which the accountant concurs and except
for (i) in the case of the financial statements for the 2001 Fiscal Year
only, the qualifications contained in such financial statements, as
filed by Borrower with the Securities and Exchange Commission in
connection with the Permitted Note Exchange
Offer and (ii) in the case of the financial statements for the 2002
Fiscal Year only, a going concern qualification audited financial
statements of Borrower and its Subsidiaries as of the end of such year,
on a Consolidated basis, certified by a firm of independent certified
public accountants of recognized standing selected by Borrower but
acceptable to Agent and, within a reasonable time thereafter a copy of
any management letter issued in connection therewith;"
(b) The definition of the term Restricted Investment
contained in Appendix A to the Loan Agreement is hereby amended by (i) deleting
the word "and" at the end of clause (viii) thereof and (ii) amending and
restating clause (ix) thereof, as follows:
"(ix) shares of common stock of Metals USA Inc. received by
Borrower under Metals USA Inc.'s plan of reorganization; and
(x) investments otherwise permitted pursuant to the Agreement."
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. 3 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 January 13, 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
----------------------------------------
Title
-------------------------------------
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 8th day of January, 2003.
WEIRTON STEEL CORPORATION
By /s/ Xxxxx X. Xxxxx
Its Treasurer
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