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Exhibit
10.1
FOURTH AMENDMENT AND
CONSENT TO AMENDED AND RESTATED
REVOLVING LOAN
AGREEMENT
This Fourth Amendment and
Consent to Amended and Restated Revolving Loan Agreement (this
“Amendment”) is entered into as of October 31,
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 3.31 to the
Loan Agreement is hereby amended by deleting the text “and
Monessen Southwestern Railway” in the second line therein and
substituting therefor the text “, Monessen Southwestern
Railway and Metal Centers”.
(b) Section 5.7 to the
Loan Agreement is hereby amended by deleting the text “either
Consumers Mining or Monessen Southwestern Railway” in the
second line of clause (c) thereof and substituting therefor
the text “any of Consumers Mining, Monessen Southwestern
Railway or Metal Centers”.
(c) 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, (ii) pay fees and
expenses incurred
in connection with the Esmark
Merger not to exceed $8,000,000 in the aggregate, (iii) make
Restricted Payments to New Esmark 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) not to exceed $1,000,000 in Fiscal Year 2007 and
(iv) pay any taxes that are due and payable by New Esmark,
Holdings and the Borrower as part of a consolidated
group.”
(d) New Section 6.18 to
the Loan Agreement is hereby inserted immediately following
Section 6.17 thereof to read as follows:
“ Section 6.18 .
Equity Rights Offering . Prior to the funding of the Equity
Rights Contribution, permit the Surviving Entity 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.”
(e) Section 8.1 to the
Loan Agreement is hereby amended as follows:
(i) By amending and restating
clause (k) thereof in its entirety to read as
follows:
“(k) (i) (A) any
“person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) other than United
Steelworkers of America (together with any trustee or entity
appointed thereby to hold common stock of Holdings on its behalf,
including the VEBA Trust, (the “Union”) or, upon the
consummation of the Esmark Merger, New Esmark, shall become, or
obtain rights (whether by means or warrants, options or otherwise)
to become, the “beneficial owner” (as defined in Rules
13(d)-3 and 13(d) 5 under the Exchange Act), directly or
indirectly, of more than 30% of the outstanding common stock of
Holdings or, upon the consummation of the Esmark Merger, the
Surviving Entity or (B) the Union shall (I) vote or have
the ability to vote more than 27% of the outstanding common stock
of Holdings or, upon the consummation of the Esmark Merger, the
Surviving Entity in any election of one or more directors of
Holdings or, upon the consummation of the Esmark Merger, the
Surviving Entity or (II) become, or obtain rights (whether by means
or warrants, options or otherwise) to become, the beneficial owner,
directly or indirectly, of more than 40% of the outstanding common
stock of Holdings or, upon the consummation of the Esmark Merger,
the Surviving Entity, provided that it shall not be an Event
of Default hereunder if the Union shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the
beneficial owner, directly or indirectly, of more than 40% of the
outstanding common stock of Holdings or, upon the consummation of
the Esmark Merger, the Surviving
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Entity so long as
(I) the acquisition of Holdings or, upon the consummation of
the Esmark Merger, the Surviving Entity common stock (or rights to
acquire Holdings or, upon the consummation of the Esmark Merger,
the Surviving Entity common stock) which causes the Union’s
beneficial ownership to exceed 40% (and each acquisition of
Holdings or, upon the consummation of the Esmark Merger, the
Surviving Entity common stock by the Union thereafter) is made
directly from Holdings or, upon the consummation of the Esmark
Merger, the Surviving Entity and (II) the Union’s beneficial
ownership does not at any time equal or exceed 50% of the
outstanding common stock of Holdings or, upon the consummation of
the Esmark Merger, the Surviving Entity; (ii) the board of
directors of Holdings or, upon the consummation of the Esmark
Merger, the Surviving Entity shall cease to consist of a majority
of Continuing Directors; or (iii) Holdings or, upon the
consummation of the Esmark Merger, the Surviving Entity shall cease
to own and control, of record and beneficially, directly, 100% of
each class of outstanding Capital Stock of the Borrower free and
clear of all Liens (except Liens created by the Security
Agreement); or”
(ii) By inserting in clause
(l) thereof the text “(including those underlying
obligations for which Restricted Payments may be made to Holdings
pursuant to Section 6.6)” at the conclusion of subclause
(ii)(z) therein.
(iii) Inserting new clause
(q) therein immediately following clause (p) thereof 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”), (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 those underlying obligations for which Restricted
Payments may be made to New Esmark pursuant to Section 6.6),
or (iii) own, lease, manage or otherwise operate any
properties or assets (including cash (other than cash received in
connection with dividends made by Holdings in accordance with
Section 6.6 pending application in the manner contemplated by
said Section or made by Esmark Services in accordance with the
Esmark Loan Agreement as in effect on the Fourth
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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
or the lease of executive office space (and the lease or ownership
of office equipment therefor) as contemplated pursuant to
Section 6.6; or”
(f) The following definitions
contained in Annex A to the Loan Agreement are hereby amended and
restated in their entirety to read as follows:
“ Guarantee
Agreements ” means the collective reference to each of
the guarantee agreements executed by Holdings, WP Steel Venture and
each other Subsidiary Guarantor, and, upon the consummation of the
Esmark Merger, New Esmark, substantially in the form of Exhibit
D .
“ Guarantors
” means the collective reference to Holdings, WP Steel
Venture and the Subsidiary Guarantors and, upon the consummation of
the Esmark Merger, New Esmark.
“ Holdings
” has the meaning ascribed thereto in the recitals of this
Agreement; provided , that upon the consummation of the
Esmark Merger, “Holdings” shall be the Surviving
Entity.
“ Inactive
Subsidiary ” means a Subsidiary which (i) owns no
assets (other than, in the case of Metal Centers, its existing
ownership on the Fourth Amendment Effective Date of interests in
two joint ventures, the aggregate value of which shall be at all
times less than $2,000,000), (ii) engages in no business
(other than, in the case of Metal Centers, incident to its
ownership of such interests in such joint ventures) and
(iii) has no Indebtedness.
“ Subsidiary
Guarantors ” means the collective reference to all
Subsidiaries of Holdings other than the Borrower and the Inactive
Subsidiaries.
(g) Annex A to the Loan
Agreement is hereby amended by inserting the following definitions
in alphabetical order therein:
“ Capital Infusion
Notes ” means the Senior Subordinated Unsecured
Convertible Promissory Notes in an original principal amount of
$50,000,000 dated as of March 16, 2007 and incurred by
Holdings to evidence the Capital Infusion (as defined in the Second
Amendment).
“ Equity Purchase
Rights ” means the right of the holders of Capital Stock
of Holdings to purchase additional shares of Capital Stock of New
Esmark for cash in connection with the Esmark Merger in an
aggregate amount not to exceed $200,000,000.
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“ Equity Rights
Contribution ” means the gross proceeds of the Equity
Purchase Rights received by New Esmark, including, without
limitation, amounts received pursuant to the Standby Purchase
Agreement.
“ Esmark Loan
Agreement ” means the $150,000,000 Credit Agreement dated
as of April 30, 2007 among Esmark Incorporated, certain
subsidiaries of Esmark Incorporated, the banks and other financial
institutions from time to time party thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent and Co-Collateral Agent and General
Electric Capital Corporation, as Co-Collateral Agent, as the same
may be amended with the prior written consent of the Administrative
Agent.
“ Esmark Merger
” has the meaning ascribed to it in the Fourth
Amendment.
“ Esmark Merger Put
Right ” has the meaning ascribed to it in the Fourth
Amendment.
“ Fourth
Amendment ” means that certain Fourth Amendment to
Amended and Restated Revolving Loan Agreement dated as of
October 31, 2007 by and among Borrower, Holdings,
Administrative Agent and certain Lenders.
“ Fourth Amendment
Effective Date ” has the meaning ascribed to it in the
Fourth Amendment.
“ Metal Centers
” means Metal Centers L.L.C., a Delaware limited liability
company.
“ New Esmark
” means Clayton Acquisition Corporation, a Delaware
corporation to be renamed “Esmark Incorporated” in the
Esmark Merger, and the corporate parent of WPC Merger.
“ Standby Purchase
Agreement ” means a standby purchase agreement to be
entered into between New Esmark and Franklin Mutual Advisors, LLC,
as agent for certain funds identified therein (such funds,
collectively, the “ Standby Purchasers ”) in
connection with the Esmark Merger providing for the purchase for
cash by the Standby Purchasers of shares of Capital Stock of New
Esmark in an aggregate amount equal to the difference between
(i) the proceeds received by New Esmark from the Equity
Purchase Rights and (b) $200,000,000.
“ Surviving
Entity ” means the surviving entity of the Esmark Merger
between Holdings and WPC Merger.
“ WPC Merger
” means Wales Merger Corporation, a Delaware corporation, and
a wholly-owned subsidiary of New Esmark.
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(h) Annex A to the
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