Exhibit 10.15
EXECUTION COPY
FIRST AMENDMENT AND WAIVER
FIRST AMENDMENT AND WAIVER, dated as of June 25, 2004 (this "First
Amendment"), to the Term Loan Agreement, dated as of July 31, 2003 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Wheeling-Pittsburgh Corporation ("Holdings"), Wheeling-Pittsburgh Steel
Corporation (the "Borrower"), the Lenders party to the Credit Agreement, the
Documentation Agent and Syndication Agent named therein, Royal Bank of Canada,
as administrative agent (in such capacity, the "Administrative Agent"), the
Emergency Steel Loan Guarantee Board (the "Federal Guarantor") and the West
Virginia Housing Development Fund (the "State Guarantor"). Terms defined in the
Credit Agreement shall be used in this First Amendment with their defined
meanings unless otherwise defined herein.
W I T N E S S E T H:
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WHEREAS, Holdings, the Borrower, the Lenders, the Administrative Agent,
the Federal Guarantor and the State Guarantor are parties to the Credit
Agreement;
WHEREAS, the Borrower has requested that the Tranche B Lenders agree to
amend the Applicable Margin with respect to the Tranche B Loans (the "Tranche B
Repricing") as provided herein;
WHEREAS, Holdings intends to sell up to an aggregate of $150,000,000 of
its Capital Stock through one or more offerings in the capital markets (each an
"Equity Offering" and collectively, the "Equity Offerings") and the Borrower has
requested that the Lenders agree to waive certain mandatory prepayment
provisions of the Credit Agreement with respect to the proceeds thereof;
WHEREAS, the Borrower has requested that the Lenders agree to make certain
other amendments and waivers relating to the Credit Agreement as set forth
herein; and
WHEREAS, the Tranche B Lenders are willing to agree to the amendments
necessary to effectuate the Tranche B Repricing, and the Lenders, the
Administrative Agent and the Federal Guarantor are willing to agree to such
other waivers and amendments set forth herein, in each case subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, Holdings, the Borrower, the Lenders, the Administrative Agent
and the Federal Guarantor hereby agree as follows:
SECTION I. AMENDMENT RELATING TO THE TRANCHE B LOAN REPRICING.
1. Amendment to Section 1.1 (Definitions). The definition of "Applicable
Margin" set forth in Section 1.1 of the Credit Agreement is hereby amended by
deleting from the table contained therein the line entitled "Tranche B Loans"
and the margins for ABR Loans and Eurodollar Loans set forth opposite thereto
and inserting in lieu thereof:
"Tranche B Loans 0% 0.55%".
SECTION II. WAIVERS AND AMENDMENTS RELATING TO THE EQUITY OFFERINGS.
1. Waiver of Mandatory Prepayment Provisions. Each of the Lenders and the
Federal Guarantor hereby waives the requirement set forth in Section 2.6(a) with
respect to the application of the Net Cash Proceeds of each Equity Offering,
provided that (i) such Equity Offerings are consummated no later than January
31, 2005 and (ii) upon receipt of Net Cash Proceeds from any Equity Offering,
Holdings shall contribute such Net Cash Proceeds to the Borrower and the
Borrower shall apply such Net Cash Proceeds in the following order: (A) first,
on any date on which Net Cash Proceeds are received from an Equity Offering (or
the following Business Day in the event Net Cash Proceeds are received after
2:00 p.m., New York City time) (each a "Prepayment Date"), to reduce the
principal amount of the loans outstanding under the Revolving Loan Agreement to
zero (excluding any letters of credit then outstanding under the Revolving Loan
Agreement); (B) second, to the extent of any excess, to Capital Expenditures to
be made on or after the date of such Equity Offering, provided that (I) any Net
Cash Proceeds allocated to Capital Expenditures pursuant to this clause (B) are
deposited on the date of such Equity Offering in a segregated account (the
"Capital Expenditure Deposit Account") as to which the deposit bank has executed
a control agreement in favor of the Collateral Agent for the benefit of the
Secured Parties (as defined in the Security Agreement) in form and substance
satisfactory to the Administrative Agent, (II) all Capital Expenditures made
with amounts withdrawn from the Capital Expenditure Deposit Account are expended
pursuant to and in accordance with clause (a), (b) or (e) of Section 6.7 of the
Credit Agreement (as amended by this First Amendment), and (III) no more than
$35,000,000 of Net Cash Proceeds from all Equity Offerings may be allocated to
Capital Expenditures pursuant to this clause (B); and (C) third, on the
respective Prepayment Date, to the extent of any excess, to prepay the principal
amount of the Loans.
2. Waiver of Inverse Application of Prepayments. Notwithstanding Section
2.12(a) of the Credit Agreement, each of the Lenders and the Federal Guarantor
hereby agrees that with respect to any prepayment of Loans made in accordance
with Section II.1 above, such prepayment shall be applied pro rata among the
Tranche A Loans, the Tranche B Loans and the Tranche C Loans and, within each
tranche, pro rata over the remaining principal installments thereof as set forth
in Section 2.3.
3. Amendment to Section 1.1 (Definitions). Section 1.1 of the Credit
Agreement is hereby amended by:
(a) inserting the following new definitions in appropriate
alphabetical order:
""Capital Expenditure Deposit Account": as defined in the
First Amendment and Waiver."
""First Amendment and Waiver": the First Amendment and Waiver
to this Agreement, dated as of June 25, 2004, among Holdings, the
Borrower, the Lenders party thereto, the Administrative Agent and
the Federal Guarantor."
(b) amending the definition "Consolidated Fixed Charge Coverage
Ratio" in its entirety to read as follows:
""Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) (i) the sum (without duplication) of Consolidated
EBITDA for such period and Consolidated Lease Expense for such
period less (ii) the aggregate amount actually paid by Holdings and
its Subsidiaries during such period on account of Capital
Expenditures (excluding Capital Expenditures (i) funded from or
reimbursed by amounts on deposit in the Cash Collateral Account or
Capital Expenditure Deposit Account or (ii) made in accordance with
Section 6.7(d)) to (b) Consolidated Fixed Charges for such period."
(c) amending clause (b)(iii) of the definition of "Excess Cash Flow"
in its entirety to read as follows:
"(iii) the aggregate amount actually paid or committed to be
paid (such committed amounts to be excluded from the computation of
Excess Cash Flow in future quarters) by the Borrower and its
Subsidiaries in cash during such fiscal quarter on account of
Capital Expenditures (excluding expenditures to the extent (i)
funded by drawings on the Cash Collateral Account or the Capital
Expenditure Deposit Account, (ii) financed with the proceeds of any
Reinvestment Deferred Amount or (iii) in the case of the Coke
Facility Refurbishment Project, financed with Indebtedness incurred
in connection with such expenditures, other than Indebtedness under
the Revolving Loan Agreement necessarily incurred to fund such
expenditures),"
4. Amendment to Section 6 (Negative Covenants). Section 6 of the Credit
Agreement is hereby amended by inserting the following new provision at the end
thereof:
"6.19 Revolving Loan Balance. Permit the outstanding principal
amount of all Revolving Loans and Swing Line Loans (as such terms are
defined in the Revolving Loan Agreement) on any day to exceed $150,000,000
in the aggregate."
5. Amendment of Exhibit B (Form of Ratio and Compliance Certificate).
Exhibit B to the Credit Agreement is hereby amended by inserting the following
new paragraph 5 after existing paragraph 4:
"5. Attached hereto as Attachment 3 is a schedule of the amounts
withdrawn from the Capital Expenditure Deposit Account during the
accounting period covered by the Financial Statements and a description of
the Capital Expenditures made with such amounts."
SECTION III. AMENDMENTS RELATING TO COKE FACILITY CAPITAL EXPENDITURES.
1. Amendment to Section 1.1 (Definitions). Section 1.1 of the Credit
Agreement is hereby amended by inserting the following new definition in
appropriate alphabetical order:
""Coke Facility Refurbishment Project": the refurbishment of the No.
8 coke battery located in Follansbee, West ▇▇▇▇▇▇▇▇ to be undertaken and
completed in accordance with the project description set forth in Schedule
1.1G.".
2. Amendments to Section 6.7 (Capital Expenditures). Section 6.7 of the
Credit Agreement is hereby amended by:
(a) inserting a new paragraph between existing paragraphs (c) and
(d) (and relettering existing paragraph (d) as new paragraph (e)) as
follows:
"(d) Capital Expenditures relating to the Coke Facility
Refurbishment Project in an aggregate amount not to exceed
$85,000,000, provided that not more than $18,000,000 in the
aggregate may be expended on the Coke Facility Refurbishment Project
prior to January 1, 2006; and"; and
(b) inserting the words ", the Coke Facility Refurbishment
Project" immediately after the words "the Allenport Cold Mill
Improvements" in newly relettered paragraph (e).
3. Schedule 1.1G. The Credit Agreement is hereby amended by including as
Schedule 1.1G thereto Schedule A to this First Amendment.
SECTION IV. MISCELLANEOUS.
1. Representations and Warranties. (a) Each of Holdings and the Borrower
hereby confirms, reaffirms and restates the representations and warranties set
forth in Section 3 of the Credit Agreement. Each of Holdings and the Borrower
represents and warrants that, after giving effect to this First Amendment, no
Default or Event of Default has occurred and is continuing.
(b) Each of Holdings and the Borrower represents that the audited
consolidated balance sheets of Holdings as at December 31, 2003, and the related
consolidated statements of income and of cash flows for the period ended on such
date, reported on and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly the consolidated financial condition
of Holdings as at such date, and the consolidated results of its operations and
its consolidated cash flows for the period then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein).
2. Effectiveness. This First Amendment shall become effective as of and on
the date on which the following conditions precedent shall have been satisfied
(the "First Amendment Effective Date"):
(a) Consent; First Amendment. The Administrative Agent shall have
received counterparts hereof duly executed by Holdings, the Borrower, the
Federal Guarantor, the Tranche A Lender, the Tranche C Lender and each of
the Tranche B Lenders.
(b) Fees. The Administrative Agent shall have received payment of
all expenses required to be paid on or before the First Amendment
Effective Date for which invoices have been timely presented, including,
without limitation, the reasonable fees and expenses of legal counsel.
(c) Legal Opinion. The Administrative Agent shall have received a
legal opinion addressed to the Administrative Agent, the Lenders and the
Federal Guarantor from ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to Holdings,
the Borrower and their Subsidiaries, in form and substance reasonably
satisfactory to the Administrative Agent.
3. No Change. Except as expressly provided herein, no term or provision of
the Credit Agreement shall be amended, modified, supplemented or waived, and
each term and provision of the Credit Agreement shall remain in full force and
effect.
4. Counterparts. This First Amendment may be executed by the parties
hereto in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
5. Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
WHEELING-PITTSBURGH CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
ROYAL BANK OF CANADA, as Administrative
Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager, Agency
ROYAL BANK OF CANADA, as Tranche A Lender
and Tranche C Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Royal Bank of Canada
(SIGNATURE PAGE TO FIRST AMENDMENT AND WAIVER TO TERM LOAN AGREEMENT)
EMERGENCY STEEL LOAN GUARANTEE BOARD
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: General Counsel
(SIGNATURE PAGE TO FIRST AMENDMENT AND WAIVER TO TERM LOAN AGREEMENT)
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Country HZAD - USA
Lloyds TSB Bank plc
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
STRUCTURED FINANCE
8366
/s/ ▇▇▇▇ ▇▇▇
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▇▇▇▇ ▇▇▇
Assistant Vice President
Structured Finance
0-008
Bank One, NA
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Name of Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
ALLSTATE LIFE INSURANCE COMPANY
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Name of Lender
By: /s/ [Signature illegible]
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Name:
Title:
By: /s/ [Signature illegible]
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(Signature Page to First Amendment and Waiver to Term Loan Agreement)
Allied Irish Banks plc
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
By: /s/ [Signature Illegible]
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Name: [Signature Illegible]
Title: FVP
(SIGNATURE PAGE TO FIRST AMENDMENT AND WAIVER TO TERM LOAN AGREEMENT)
KBC BANK N.V.
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Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: VICE PRESIDENT
(Signature Page to First Amendment and Waiver to Term Loan Agreement)
US BANK N.A.
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Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
(Signature Page to First Amendment and Waiver to Term Loan Agreement)
BAYERISCHE LANDESBANK
Cayman Islands Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
(SIGNATURE PAGE TO FIRST AMENDMENT AND WAIVER TO TERM LOAN AGREEMENT)
Name of Lender: FLEET CAPITAL CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
