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Exhibit
10.3
FIFTH AMENDMENT AND
CONSENT TO AMENDED AND RESTATED
REVOLVING LOAN
AGREEMENT
This Fifth Amendment and
Consent to Amended and Restated Revolving Loan Agreement (this
“Amendment”) is entered into as of November 27,
2007 by and among Wheeling-Pittsburgh Steel Corporation, a Delaware
corporation (“Borrower”), Wheeling-Pittsburgh
Corporation, a Delaware corporation (“Holdings”),
General Electric Capital Corporation, as administrative agent
(“Administrative Agent”) for the Lenders (this and all
other capitalized terms not defined herein shall have the meanings
set forth in the “Loan Agreement” as defined below),
and the other Lenders signatory hereto.
RECITALS
WHEREAS, Borrower, Holdings,
Administrative Agent, Lenders and certain other parties thereto
have entered into an Amended and Restated Revolving Loan Agreement
dated as of July 8, 2005 (as heretofore or hereafter amended,
modified, supplemented or restated, the “Loan
Agreement”);
WHEREAS, Borrower desires,
and the Lenders and the Administrative Agent are willing, to amend
the Loan Agreement and to consent to the Esmark Merger (as
hereinafter defined), upon and subject to the conditions set forth
in this Amendment; and
WHEREAS, this Amendment shall
constitute a Loan Document and these Recitals shall be construed as
part of this Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto hereby agree as
follows:
1. Amendments to the Loan
Agreement .
(a) Section 6.6 to the
Loan Agreement is hereby amended by amending and restating clause
(d) thereof in its entirety to read as follows:
“(d) the Borrower may
make Restricted Payments to Holdings to permit Holdings to
(i) pay corporate overhead expenses incurred in the ordinary
course of business (including expenses incurred in connection with
insurance, director compensation and legal and accounting services)
not to exceed $2,500,000 in any Fiscal Year and (ii) pay any
taxes attributable to Holdings and its Subsidiaries that are due
and payable by New Esmark, Holdings and the Borrower as part of a
consolidated group.”
(b)Section 8.1 to the Loan
Agreement is hereby amended by: (i) amending and restating the
parenthetical clause at the end of clause (l)(ii)(z) thereof in its
entirety to read as follows: “(including obligations in
connection with the retention of financial, legal and accounting
advisors to Holdings (including in connection with the Esmark
Merger), obligations in respect of insurance and in respect of
compensation to directors, officers and/or executive employees of
Holdings)”; and (ii) amending and restating clause
(q) thereof in its entirety to read as follows:
“(q) Upon the
consummation of the Esmark Merger, New Esmark shall
(i) conduct, transact or otherwise engage in, or commit to
conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the
Capital Stock of Holdings and the surviving entity in the merger of
Esmark Incorporated, a Delaware corporation and Clayton Merger,
Inc., a Delaware corporation, such surviving entity to be renamed
“Esmark Steel Services Group, Inc.” (“ Esmark
Services ”), and its acquisition and ownership of the
Designated Capital Infusion Notes, (ii) incur, create, assume
or suffer to exist any Indebtedness or other liabilities or
financial obligations, except (x) nonconsensual obligations
imposed by operation of law, (y) obligations pursuant to the
Loan Documents, the loan documents relating to the Term Loan
Agreement to which it is a party, the Series A Notes and the
Series B Notes and the Esmark Loan Agreement and the loan documents
related thereto and (z) obligations with respect to its
Capital Stock (including obligations in connection with the
retention of financial, legal and accounting advisors to New
Esmark, obligations in respect of insurance and of compensation to
directors, officers and/or executive employees of New Esmark and
obligations in respect of lease or leases of executive office space
and office equipment therefor), or (iii) own, lease, manage or
otherwise operate any properties or assets (including cash (other
than cash received in connection with the Esmark Merger pending
application (1) to pay transaction expenses of Holdings and
its Subsidiaries incurred in connection with the Esmark Merger,
(2) of the purchase price for the Designated Capital Infusion
Notes, and (3) in the manner contemplated in clause (ii)(z)
above or in connection with distributions made by Esmark Services
in accordance with the Esmark Loan Agreement as in effect on the
Fifth Amendment Effective Date and as the same may be amended with
the prior written consent of the Administrative Agent) and cash
equivalents) other than the ownership of shares of Capital Stock of
Holdings or Esmark Services, the ownership of the Designated
Capital Infusion Notes or the lease of executive office space (and
the lease or ownership of office equipment therefor) as
contemplated in clause (ii)(z) above; or”
(c) The following definitions
contained in Annex A to the Loan Agreement are hereby amended and
restated in their entirety to read as follows:
“ Esmark Merger
” has the meaning ascribed to it in the Fifth
Amendment.
“ Esmark Merger Put
Right ” has the meaning ascribed to it in the Fifth
Amendment.
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(d) Annex A to the Loan
Agreement is hereby amended by inserting the following definitions
in alphabetical order therein:
“ Designated Capital
Infusion Notes ” has the meaning ascribed to it in the
Fifth Amendment.
“ Fifth
Amendment ” means that certain Fifth Amendment to Amended
and Restated Revolving Loan Agreement dated as of November __,
2007 by and among Borrower, Holdings, Administrative Agent and
certain Lenders.
“ Fifth Amendment
Effective Date ” has the meaning ascribed to it in the
Fifth Amendment.
2. Consent . Pursuant
to the terms of the Fourth Amendment, the effectiveness of
Section 2 thereof, relating to the consent of the Esmark
Merger and the amendment and prepayment of the Capital Infusion
Notes, was conditioned on several deliveries and conditions. To
date, such deliveries and conditions have not been met in full. The
parties hereto agree that as of the date hereof, Section 2 of
the Fourth Amendment is deleted in its entirety from the Fourth
Amendment and shall be of no force and effect. The parties hereto
acknowledge that the conditions to the effectiveness of the
remainder of the Fourth Amendment have been satisfied or waived.
Notwithstanding the foregoing or any provision in the Loan
Agreement to the contrary, Administrative Agent and Lenders hereby
consent to (a) the merger, combination or consolidation of or
by Holdings within or into WPC Merger (the “Esmark
Merger”), with Holdings or WPC Merger as the surviving
entity, and (b) the amendment of certain Capital Infusion
Notes having an outstanding principal amount not to exceed
$5,000,000 (the “Designated Capital Infusion Notes”),
to permit such Capital Infusion Notes to survive the Esmark Merger
and to increase the coupon on such Convertible Debt, and the
purchase of such Designated Capital Infusion Notes by New Esmark as
provided in clause (ii) below, in each case, so long as the
following conditions are satisfied on terms satisfactory to
Administrative Agent in its sole discretion:
(i) the Esmark Merger to
occur on or prior to November 30, 2007;
(ii) 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 Esmark to the holders of the Capital Stock of the
Surviving Entity in connection with any right of such holders to
put to New Esmark the Capital Stock of New Esmark received by such
holders in the Esmark Merger (the “ Esmark Merger Put
Right ”); (B) amounts, in an aggregate not to exceed
$10,000,000, either previously contributed by New Esmark to the
Surviving Entity or advanced by any Subsidiary of New Esmark (other
than the Surviving Entity and its Subsidiaries) to the Surviving
Entity or any of its Subsidiaries; (C) an amount reasonably
believed by New Esmark to equal the fees and expenses incurred in
connection with the Esmark Merger, which shall not exceed
$8,000,000 in the aggregate; provided , that if the amount
retained by New Esmark for such fees and expenses is in excess of
the actual fees and expenses incurred in
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connection with the Esmark
Merger, then not later than 30 days following the consummation of
the Esmark Merger, such excess amount shall be distributed to
Borrower to prepay the Loans in accordance with
Section 1.3(d) ; (D) an amount, not to exceed
$1,000,000, to permit New Esmark to pay corporate overhead expenses
incurred in the ordinary course of business (including expenses
incurred in connection with insurance, director and executive
employee compensation, and legal, financial advisor and accounting
services and the leasing of executive office space) in Fiscal Year
2007; and (E) an amount not to exceed $5,300,000 to permit New
Esmark to purchase the Designated Capital Infusion Notes, to be
applied, not later than 5 Business Days following the consummation
of the Esmark Merger, to prepay the Loans in accordance with
Section 1.3(d);
(iii) the holders of all Plan
of Reorganization Indebtedne
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