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Exhibit
10.5
TENTH AMENDMENT TO AMENDED
AND RESTATED
REVOLVING LOAN
AGREEMENT
This Tenth Amendment to
Amended and Restated Revolving Loan Agreement (this
“Amendment”) is entered into as of May 5, 2008 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 Administrative Agent are willing, to amend the
Loan Agreement, 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 deleting clause
(b) thereof in its entirety and substituting therefor the
following:
“[(b) INTENTIONALLY
RESERVED]”
(b) Section 6.8 to the
Loan Agreement is hereby amended by (i) deleting in clause
(h) thereof the text “$33,000,000 during the term of
this Agreement” and substituting therefor the text
“$15,000,000 in any Fiscal Year or $22,000,000 in the
aggregate after the Tenth Amendment Effective Date” and
(ii) inserting a new clause (j) at the conclusion thereof
to read as follows:
“(j) investments by
Holdings or any of its Subsidiaries in E2 Acquisition Corporation
made after the Tenth Amendment Effective Date, provided that
(i) the aggregate amount of all such investments does not
exceed $3,000,000, (ii) the proceeds of such investments are
used solely to pay E2 Transaction Costs and (iii) the
Administrative Agent shall have received a written summary of all
E2 Transaction Costs being paid with the proceeds of such
investments and approved such summary before such investments are
made by Holdings and/or its Subsidiaries.”
(c) Section 8 to the
Loan Agreement is hereby amended by deleting clause
(k) therein in its entirety and substituting therefor the
following:
“(k) (i) New
Esmark shall cease to own 100% of the Voting Interests in Holdings
or Esmark Steel Service Group, Inc. (“ESSG”); or
(ii) any Person or two or more Persons acting in concert other
than Franklin Mutual shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Interests of New Esmark (or other securities
convertible into such Voting Interests) representing 20% or more of
the combined voting power of all Voting Interests of New Esmark; or
(iii) any Person or two or more Persons acting in concert
other than Franklin Mutual shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of
control over Voting Interests of New Esmark (or other securities
convertible into such Voting Interests) representing 20% or more of
the combined voting power of all Voting Interests of New Esmark; or
(iv) Holdings shall cease to own 100% of the Equity Interests
in Wheeling-Pittsburgh Steel Corporation; or (v) New Esmark or
any of its Subsidiaries Disposes of property in a single or series
of Dispositions (other than Dispositions permitted under
Section 6.5(a) through (f), inclusive) valued in the aggregate
in excess of 5% of the total book value of the assets of New Esmark
and its Subsidiaries; provided, that the execution and delivery of
the Merger Agreement and the consummation of the transactions
contemplated by the Merger Agreement shall not constitute a
“Change of Control” hereunder until 15 days after the
consummation of the Merger (as defined in the Merger
Agreement).”
(d) Section 8 to the
Loan Agreement is hereby amended by (inserting at the conclusion of
clause (q)(ii)(y) therein the text “and a guarantee in
connection with the Term Loan Agreement dated as of the Tenth
Amendment Effective Date among New Esmark and its Subsidiaries
(other than the Credit Parties) and obligations in respect of
advances made to New Esmark with the proceeds of the loans
thereunder (the “Proceeds”) and (ii) inserting at
the conclusion of clause (q)(iii) therein the text “and the
Proceeds”.
(e) Annex A to the Loan
Agreement is hereby amended by inserting the text “(other
than the Power Service Accounting Lease)” at the conclusion
of clause (e) therein.
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(f) Annex A to the Loan
Agreement is hereby amended by amending and restating the
definition of “Term Loan Agreement” therein in its
entirety as follows:
“ Term Loan
Agreement ” means the $79,000,000 Amended and Restated
Term Loan Agreement, dated as of May 5, 2008, among Holdings,
the Borrower, the banks and other financial institutions from time
to time party thereto, the Term Loan Agent, as amended, restated,
supplemented or otherwise modified from time to time or as
refinanced with the consent of the Required Lenders.
(g) Annex A to the Loan
Agreement is hereby amended by inserting the following definitions
in alphabetical order therein:
“ E2 Acquisition
” means the acquisition and related transactions described in
the Purchase and Sale Agreement, dated as of August 1, 2007,
by and among Mittal Steel USA Inc., ISG Sparrows Point LLC, ISG
Acquisition Inc., Mittal Steel USA—Venture Inc., ISG
Technologies Inc., Mittal Steel USA—Railways Inc., Bethlehem
Acquisition Co. and BIP Acquisition Sub, Inc.
“ E2 Transaction
Costs ” means transaction costs paid or payable in
connection with the E2 Acquisition.
“ Equity
Interests ” means with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, securities
convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants,
rights or options for the purchase or other acquisition from such
Person of such shares (or such other interests), and other
ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
“ Franklin
Mutual ” means Franklin Mutual Advisers, L.L.C., a
Delaware limited liability company.
“ Memorandum of
Agreement ” means the Memorandum of Agreement, dated
April 30, 2008, between Essar Steel Holdings Limited and New
Esmark.
“ Merger
Agreement ” means the Agreement and Plan of Merger
attached as Attachment I to the Memorandum of Agreement.
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“ Power Service
Accounting Lease ” the Second Amended and Restated Energy
Services Agreement dated July 31, 2003 between Mingo Junction
Energy Center, LLC and Wheeling-Pittsburgh Steel
Corporation.
“ Prior Term Loan
Agreement ” means the $250,000,000 Term Loan Agreement,
dated as of July 31, 2003, among Holdings, the Borrower, the
banks and other financial institutions from time to time party
thereto, Royal Bank of Canada, as administrative agent, and the
other agents named therein.
“ Tenth
Amendment ” means that certain Tenth Amendment to Amended
and Restated Revolving Loan Agreement dated as of May 5, 2008
by and among Borrower, Holdings, Administrative Agent and the
Lenders.
“ Tenth Amendment
Effective Date ” has the meaning ascribed to it in the
Tenth Amendment.
“ Term Loan
Agent ” means Essar Steel Holdings Limited, as
administrative agent pursuant to the Term Loan
Agreement.
“ Voting
Inter
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