|
Exhibit
10.4
SIXTH
AMENDMENT
(Term Loan
Agreement)
THIS SIXTH AMENDMENT,
dated as of November 27, 2007 (this “ Amendment
”), to the Term Loan Agreement, dated as of July 31,
2003, as amended to the date hereof (as so amended, the “
Term Loan Agreement ”), each among Wheeling-Pittsburgh
Corporation, a Delaware corporation (“ Holdings
”), Wheeling-Pittsburgh Steel Corporation, a Delaware
corporation (the “ Borrower ”), certain of the
Lenders parties to the Term Loan Agreement, Royal Bank of Canada,
as administrative agent (in such capacity, the “
Administrative Agent ”), and the Emergency Steel Loan
Guarantee Board (the “ Federal Guarantor
”).
WITNESSETH:
WHEREAS, Holdings, the
Borrower, the Lenders, the Administrative Agent and the Federal
Guarantor are parties to the Term Loan Agreement;
WHEREAS, the Borrower has
requested certain amendments and other modifications to the Term
Loan Agreement as set forth herein; and
WHEREAS, the Administrative
Agent, certain of the Lenders and the Federal Guarantor are willing
to agree to such amendments, in each case subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained
herein, the parties hereto hereby agree as follows:
Section 1. Defined
Terms . Capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Term
Loan Agreement.
Section 2.
Amendments to Term Loan Agreement . Effective as of the
Sixth Amendment Effective Date, the Term Loan Agreement is hereby
amended as follows:
(a) The definitions of the
following terms set forth in Section 1.1 of the Term Loan
Agreement are hereby amended to read in full as follows:
“ Esmark Transaction
Agreement ”: that certain Agreement and Plan of Merger
and Combination, dated as of March 16, 2007, as amended by the
First Amendment to Agreement and Plan of Merger and Combination,
dated as of October 22, 2007, each by and among New Holdings,
Holdings, Holdings Merger Subsidiary, Esmark and Esmark Merger
Subsidiary.”
“ Holdings
”: Wheeling-Pittsburgh Corporation, a Delaware corporation,
or the surviving entity of the Esmark Transaction between Holdings
and Holdings Merger Subsidiary.
(b) The following definitions
are hereby inserted in Section 1.1 of the Term Loan Agreement
in the appropriate alphabetical order:
“ Equity Rights
Contribution ”: the gross proceeds of the Equity Purchase
Rights received by New Holdings, including, without limitation,
amounts received pursuant to the Standby Purchase
Agreement.
“ Equity Purchase
Rights ”: the right of the holders of Capital Stock of
Holdings to purchase additional shares of Capital Stock of New
Holdings for cash in connection with the Esmark Transaction in an
aggregate amount not to exceed $200,000,000.
“ Esmark Merger Put
Right ”: any right of the holders of the Capital Stock of
Holdings to put to New Holdings the Capital Stock of New Holdings
received by such holders in the EsmarkTransaction.
“ Sixth
Amendment ”: the Sixth Amendment, dated as of
November 27, 2007, to this Agreement among Holdings, the
Borrower, the Lenders party thereto, the Administrative Agent and
the Federal Guarantor.
“ Sixth Amendment
Effective Date ”: the date on which all of the conditions
precedent set forth in Section 4 of the Sixth Amendment shall
have been satisfied or waived.
“ Standby Purchase
Agreement ”: a standby purchase agreement to be entered
into between New Holdings and Franklin Mutual Advisors, LLC, as
agent for certain funds identified therein (such funds,
collectively, the “ Standby Purchasers ”) in
connection with the Esmark Transaction providing for the purchase
for cash by the Standby Purchasers of shares of Capital Stock of
New Holdings in an aggregate amount equal to the difference between
(i) the proceeds received by New Holdings from the Equity
Purchase Rights and (b) $200,000,000.
(c) Section 5.3(b) of
the Term Loan Agreement is hereby amended by deleting “15
days” and inserting in place thereof “30
days”.
(d) Section 6.6 of the
Term Loan Agreement is hereby amended by amending and restating
clause (d)(ii) thereof in its entirety to read as
follows:
“(ii) pay any taxes
attributable to Holdings and its Subsidiaries that are due and
payable by New Holdings, Holdings and the Borrower as part of a
consolidated group.”
(e) Section 7.1(m) of
the Term Loan Agreement is hereby amended by inserting the text
“(including obligations in respect of the retention of
financial, legal and accounting advisors to Holdings (including in
connection with the Esmark Transaction), obligations in respect of
insurance and in respect of compensation to directors, officers and
or executive employees of Holdings)” at the conclusion of
subclause (ii)(z) therein.
2
(f) New Section 6.19 to
the Term Loan Agreement is hereby inserted immediately following
Section 6.18 thereof to read as follows:
“Section 6.19.
Equity Rights Offering . Prior to the funding of the Equity
Rights Contribution, permit the Holdings to make any payments in
respect of the Esmark Merger Put Right or to pay any fees or
expenses in connection with the Esmark Merger.”
Section 3.
Waivers . Each of the Lenders and the Federal Guarantor
hereby:
(a) waives any requirement in
Sections 5.2(k) and 5.3(b) for the reports of Hatch Consulting in
respect of the calendar months from July 2007 to and including
November 2007; however, the report of Hatch Consulting in respect
of December 2007 shall be delivered to the Administrative Agent and
the Financial Advisor by January 31, 2008 and shall include a
summary report for the calendar months from July 2007 to and
including November 2007 (it being understood that the report of
Hatch Consulting in respect of any calendar month ending after
December 2007 shall be delivered to the Administrative Agent and
the Financial Advisor within 30 days of the end of such calendar
month);
(b) waives any noncompliance
with Section 5.12(c) of the Term Loan Agreement in respect of
any Inactive Subsidiary prior to the Sixth Amendment Effective
Date, and with respect to Metal Centers L.L.C only, waives
compliance with Section 5.12(c) until January 31,
2008.
Section 4.
Conditions to Effectiveness . This Amendment shall
become effective on the date (the “ Sixth Amendment
Effective Date ”) when the last of the following
conditions shall have been satisfied:
(a) Administrative Agent
shall have received evidence satisfactory to it in its sole
discretion that arrangements have been made to cause the proceeds
of the Equity Rights Contribution, less: (A) all cash payments
to be made by New Holdings to the holders of the Capital Stock of
Holdings in connection with the Esmark Merger Put Right;
(B) amounts, in an aggregate not to exceed $10,000,000, either
previously contributed by New Holdings to Holdings or advanced by
any Subsidiary of New Holdings (other than Holdings and its
Subsidiaries) to Holdings or any of its Subsidiaries during the
period from the date hereof to the date of receipt by New Holdings
of the proceeds of the Equity Rights Contribution; (C) an
amount reasonably believed by New Holdings to equal the fees and
expenses incurred in connection with the Esmark Transaction, which
shall not exceed $8,000,000 in the aggregate; provided ,
that if the amount retained by New Holdings for such fees and
expenses is in excess of the actual fees and expenses incurred in
connection with the Esmark Transaction, then not later than 30 days
following the consummation of the Esmark Transaction, such excess
amount shall be dis
| 
