EXECUTION COPY
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WHX CORPORATION
SERIES A AND SERIES B
10 1/2% SENIOR NOTES DUE 2005
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INDENTURE
Dated as of April 7, 1998
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Bank One, N.A.
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
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310 (a)(1)................................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.10
(c)................................................. N.A.
311 (a).................................................... 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312 (a).................................................... 2.05
(b)................................................. 10.03
(c)................................................. 10.03
313 (a).................................................... 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06;7.07
(c)................................................. 7.06;10.02
(d)................................................. 7.06
314 (a).................................................... 4.03
(b)................................................. N.A.
(c)(1).............................................. 10.04
(c)(2).............................................. 10.04
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 10.05
(f)................................................. N.A.
315 (a).................................................... 7.01
(b)................................................. 7.05,10.02
(c)................................................. 7.01
(d)................................................. 7.01
(e)................................................. 6.11
316 (a)(last sentence)..................................... 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
(c)................................................. N.A.
317 (a)(1)................................................. 6.08
(a)(2).............................................. 6.09
(b) ................................................ 2.04
318 (a).................................................... 10.01
(b)................................................. N.A.
(c)................................................. 10.01
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N.A. means Not Applicable
Note: This Cross-Reference Table is not, part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS......................................................1
Section 1.02. OTHER DEFINITIONS...............................................22
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...............23
Section 1.04. RULES OF CONSTRUCTION...........................................23
ARTICLE 2 THE NOTES
Section 2.01. FORM AND DATING. 23
Section 2.02. EXECUTION AND AUTHENTICATION....................................26
Section 2.03. REGISTRAR AND PAYING AGENT......................................27
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.............................27
Section 2.05. HOLDER LISTS.28
Section 2.06. TRANSFER AND EXCHANGE...........................................28
Section 2.07. REPLACEMENT NOTES...............................................37
Section 2.08. OUTSTANDING NOTES...............................................38
Section 2.09. TREASURY NOTES. 38
Section 2.10. TEMPORARY NOTES. 39
Section 2.11. CANCELLATION.39
Section 2.12. DEFAULTED INTEREST..............................................39
ARTICLE 3 REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE..............................................40
Section 3.02. SELECTION OF NOTES TO BE REDEEMED...............................40
Section 3.03. NOTICE OF REDEMPTION............................................40
Section 3.04. EFFECT OF NOTICE OF REDEMPTION..................................41
Section 3.05. DEPOSIT OF REDEMPTION PRICE.....................................41
Section 3.06. NOTES REDEEMED IN PART..........................................42
Section 3.07. OPTIONAL REDEMPTION.............................................42
Section 3.08. MANDATORY REDEMPTION............................................43
Section 3.09. Offer to Purchase by Application of EXCESS PROCEEDS.............43
ARTICLE 4 COVENANTS
Section 4.01. PAYMENT OF NOTES.45
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.................................46
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Section 4.03. REPORTS.........................................................46
Section 4.04. COMPLIANCE CERTIFICATE..........................................47
Section 4.05. TAXES...........................................................48
Section 4.06. STAY, EXTENSION AND USURY LAWS..................................48
Section 4.07. RESTRICTED PAYMENTS.............................................48
Section 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES..................................................51
Section 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK...............................................52
Section 4.10. ASSET SALES.................................................... 54
Section 4.11. TRANSACTIONS WITH AFFILIATES....................................55
Section 4.12. LIENS...........................................................56
Section 4.13. CORPORATE EXISTENCE.............................................57
Section 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL......................57
Section 4.15. PAYMENT FOR CONSENT.............................................59
ARTICLE 5 SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS........................59
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED...............................60
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT...............................................60
Section 6.02. ACCELERATION.62
Section 6.03. OTHER REMEDIES. 63
Section 6.04. WAIVER OF PAST DEFAULTS.........................................63
Section 6.05. CONTROL BY MAJORITY.............................................63
Section 6.06. LIMITATION ON SUITS.............................................63
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT...................64
Section 6.08. COLLECTION SUIT BY TRUSTEE......................................64
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM................................65
Section 6.10. PRIORITIES......................................................65
Section 6.11. UNDERTAKING FOR COSTS...........................................66
ARTICLE 7 TRUSTEE
Section 7.01. DUTIES OF TRUSTEE...............................................66
Section 7.02. RIGHTS OF TRUSTEE...............................................67
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE....................................68
Section 7.04. TRUSTEE'S DISCLAIMER............................................68
Section 7.05. NOTICE OF DEFAULT...............................................69
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES......................69
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Section 7.07. COMPENSATION AND INDEMNITY......................................69
Section 7.08. REPLACEMENT OF TRUSTEE..........................................70
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC................................71
Section 7.10. ELIGIBILITY; DISQUALIFICATION...................................71
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............72
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant DEFEASANCE........72
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE..................................72
Section 8.03. COVENANT DEFEASANCE.............................................73
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE......................73
Section 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.................75
Section 8.06. REPAYMENT TO COMPANY............................................75
Section 8.07. REINSTATEMENT...................................................76
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.............................76
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES................................77
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.............................79
Section 9.04. REVOCATION AND EFFECT OF CONSENTS...............................79
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES................................79
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.................................79
ARTICLE 10 MISCELLANEOUS
Section 10.01. TRUST INDENTURE ACT CONTROLS...................................80
Section 10.02. NOTICES........................................................80
Section 10.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES..81
Section 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.............81
Section 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..................82
Section 10.06. RULES BY TRUSTEE AND AGENTS....................................82
Section 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS...................................82
Section 10.08. GOVERNING LAW. 83
Section 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..................83
Section 10.10. SUCCESSORS. 83
Section 10.11. SEVERABILITY. 83
Section 10.12. COUNTERPART ORIGINALS..........................................83
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Section 10.13. TABLE OF CONTENTS, HEADINGS, ETC...............................83
EXHIBITS
Exhibit A-1 Form of Note...............................................A-1-1
Exhibit A-2 Form of Regulation S Temporary Note........................A-2-1
Exhibit B-1 Certificate of Transferor from 144A Global
Note to Regulation S Global Note..........................B-1-1
Exhibit B-2 Certificate of Transferor from Regulation S
Global Note to 144A Global Note............................B-2-1
Exhibit B-3 Certificate of Transferor of Definitive Notes..............B-3-1
Exhibit B-4 Certificate of Transferor from Global Note to
Definitive Note............................................B-4-1
Exhibit C Certificate of Institutional Accredited Investor...........C-1
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This Indenture, dated as of April 7, 1998, is between WHX Corporation,
a Delaware corporation (the "COMPANY"), and Bank One, N.A., a national banking
association, as trustee (the "TRUSTEE").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 10 1/2% Senior
Notes due 2005 (the "SERIES A NOTES") and the 10 1/2% Senior Notes due 2005,
Series B (the "SERIES B NOTES" and, together with the Series A Notes, the
"NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. DEFINITIONS.
"144A GLOBAL NOTE" means a permanent global senior note that contains
the paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 3 to the form of the Note attached hereto as Exhibit A-1, and that
is deposited with the Note Custodian and registered in the name of the
Depository, representing a series of Notes sold in reliance on Rule 144A or
another exemption from the registration requirements of the Securities Act,
other than Regulation S.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering an asset acquired by such specified Person at the time such
asset is acquired by such specified Person.
"ADJUSTED CONSOLIDATED LEVERAGE RATIO" means, with respect to any
Person at any date of determination, the Consolidated Leverage Ratio of such
Person, provided that clause (x) of the definition of Consolidated Leverage
Ratio shall be reduced by the aggregate amount of cash, Cash Equivalents, U.S.
Government Obligations and Triple A Rated Securities held by such Person and its
Restricted Subsidiaries as of such date prior to giving effect to any
Indebtedness incurred or to be incurred or any Preferred Stock issued or to be
issued, as the case may be, on such date.
"AFFILIATE" of any specified Person means any other Person which,
directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PREMIUM" means, with respect to a Note at any redemption
date, the greater of (i) 1.0% of the principal amount of such Note and (ii) the
excess of (A) the present value at such time of (1) the redemption price of such
Note at April 15, 2002, plus (2) all required interest payments due on such Note
through April 15, 2002, computed using a discount rate equal to the Treasury
Rate plus 50 basis points, over (B) the then outstanding principal amount of
such Note.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of beneficial interests in a Global Note, the rules and procedures of the
Depository that apply to such transfer and exchange.
"ASSET SALE" means the sale, lease, conveyance, disposition or other
transfer (a "disposition") of any properties, assets or rights (including,
without limitation, a sale and leaseback transaction or the issuance, sale or
transfer by the Company of Equity Interests of a Restricted Subsidiary) whether
in a single transaction or a series of related transactions; PROVIDED, HOWEVER,
that the following transactions will be deemed not to be Asset Sales: (a) sales
of inventory (other than Owned Precious Metal Inventory) in the ordinary course
of business; (b) the sale of Owned Precious Metal Inventory in exchange for
consideration having a fair market value at least equal to that of the Owned
Precious Metal Inventory being sold; (c) the sale or transfer of Precious Metals
in connection with a Future Payables Transaction involving the same quantity of
Precious Metals so sold or transferred; (d) a disposition of assets by the
Company to a Wholly Owned Restricted Subsidiary of the Company or by a Wholly
Owned Restricted Subsidiary of the Company to the Company or to another Wholly
Owned Restricted Subsidiary of the Company; (e) a disposition of Equity
Interests by a Wholly Owned Restricted Subsidiary of the Company to the Company
or to another Wholly Owned Restricted Subsidiary of the Company; (f) a Permitted
Investment or Restricted Payment that is permitted by this Indenture; (g) the
issuance by the Company of Equity Interests; (h) the disposition of properties,
assets or rights in any fiscal year the aggregate Net Proceeds of which are less
than $1 million; and (i) the sale of accounts
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receivable pursuant to the Receivables Facility or any other receivable facility
entered into by the Company and/or its Restricted Subsidiaries in the ordinary
course of business.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL EXPENDITURE INDEBTEDNESS" means Indebtedness incurred by any
Person to finance the purchase or construction of any property or assets
acquired or constructed by such Person which have a useful life of more than one
year so long as (a) the purchase or construction price for such property or
assets is included in "addition to property, plant or equipment" in accordance
with GAAP, (b) the acquisition or construction of such property or assets is not
part of any acquisition of a Person or line of business and (c) such
Indebtedness is incurred within 90 days of the acquisition or completion of
construction of such property or assets.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"CASH EQUIVALENTS" means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (c) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500 million, (d) repurchase obligations
with a term of not more than thirty days for underlying securities of the types
described in
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clauses (b) and (c) above entered into with any financial institution meeting
the qualifications specified in clause (c) above, (d) commercial paper having
the highest rating obtainable from Moody's Investors Service, Inc. or Standard &
Poor's Rating Service and in each case maturing within six months after the date
of acquisition and (e) money market mutual funds substantially all of the assets
of which are of the type described in the foregoing clauses (a) through (d).
"CEDEL" means Cedel Bank, societe anonyme.
"CHANGE OF CONTROL" means any of the following: (a) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to any Person (as such term in used in Section 13(d)(3) of the
Exchange Act), (b) the adoption of a plan relating to the liquidation or
dissolution of the Company, (c) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that (i)
any "Person" or "group" (as such terms are used in Section 13(d)(3) of the
Exchange Act) other than WHX or an underwriter or group of underwriters in an
underwritten public offering becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of at least 50% of the voting
power of the outstanding voting stock of the Company, (d) the merger or
consolidation of the Company with or into another corporation with the effect
that the existing stockholders of the Company hold less than 50% of the combined
voting power of the then outstanding voting securities of the surviving
corporation of such merger or the corporation resulting from such consolidation
or (e) the first day on which more than a majority of the members of the Board
of Directors of the Company are not Continuing Directors. Notwithstanding the
foregoing, the sale of all or a substantial portion of the Capital Stock of WPC
or all or substantially all of the assets of WPC and its Subsidiaries shall not
constitute a Change of Control if after giving effect to such sale and the
application of the net proceeds therefrom, the Company's Adjusted Consolidated
Leverage Ratio would be less than 5.0 to 1.0.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, without
duplication, (a) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries, to the extent that such provision for taxes was
included in computing Consolidated Net Income, PLUS (b) Consolidated Interest
Expense of such person and its Restricted Subsidiaries for such period, whether
paid or accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, dis-
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counts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing
Consolidated Net Income, PLUS (c) depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid, outside of the ordinary course of
business, in a prior period) and other non-cash charges of such Person and its
Restricted Subsidiaries for such period, to the extent that such depreciation,
amortization and other non-cash charges (including, without limitation, non-cash
charges relating to postretirement employee benefit plans and pension plans),
were deducted in computing Consolidated Net Income, MINUS (d) non-cash items
increasing consolidated revenues in determining Consolidated Net Income for such
period to the extent not already reflected as an expense in computing
Consolidated Net Income, MINUS (e) all cash payments during such period relating
to non-cash charges and other non-cash items that were or would have been added
back in determining Consolidated Cash Flow for any prior period, in each case,
on a consolidated basis and determined in accordance with GAAP, MINUS (PLUS) (f)
any gain (or loss) realized in connection with the disposition of any securities
by such Person or any of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Restricted Subsidiaries to the
extent included or deducted, as the case may be, in computing Consolidated Net
Income.
"CONSOLIDATED INTEREST COVERAGE RATIO" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Consolidated Interest Expense of such Person for such period;
PROVIDED, HOWEVER, that the Consolidated Interest Coverage Ratio shall be
calculated giving pro forma effect to each of the following transactions as if
each such transaction had occurred at the beginning of the applicable
four-quarter reference period: (a) any incurrence, assumption, guarantee or
redemption by such Person or any of its Restricted Subsidiaries of any
Indebtedness (including revolving credit borrowings based on the average daily
balance outstanding during the relevant period) subsequent to the commencement
of the period for which the Consolidated Interest Coverage Ratio is being
calculated but prior to the date on which the event for which the calculation of
the Consolidated Interest Coverage Ratio is made (the "Calculation Date"); (b)
any acquisition that has been made by such Person or any of its Restricted
Subsidiaries, or approved and expected to be consummated within 30 days of the
Calculation Date, including, in each case, through a merger or consolidation,
and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date (in which case Consolidated Cash Flow for such reference period
shall be calculated to include the Consolidated Cash Flow of the acquired
entities and without giving effect to clause (c) of the proviso set forth in the
definition of Consolidated Net Income); and (c) any other transaction that may
be given pro forma effect in accordance with Article 11 of Regulation S-X as in
effect from
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time to time; and PROVIDED, FURTHER, that (i) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded and (ii) the Consolidated Interest Expense attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Consolidated Interest Expense
will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum, without duplication, of (a) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), (b) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or one of its Subsidiaries or secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries (whether or not such
guarantee of Lien is called upon), (c) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period
and (d) the product of (i) all cash dividend payments on any series of Preferred
Stock of such Person, times (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the then current combined federal, state
and local statutory tax rates of such Person, expressed as a decimal, in each
case, on a consolidated basis and in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to any Person at any
date of determination, the ratio of (x) the aggregate amount of all Indebtedness
of such Person and its Restricted Subsidiaries plus the aggregate liquidation
value of all Preferred Stock of Restricted Subsidiaries of such Person, in each
case as of the date of determination to (y) the Consolidated Cash Flow of such
Person for the most recently ended four fiscal quarters for which internal
financial statements are immediately available preceding such date of
determination; PROVIDED, HOWEVER, that the Consolidated Leverage Ratio shall be
calculated giving pro forma effect to each of the following transactions as if
each such transaction had occurred at the beginning of the most recently ended
four fiscal quarters for which internal financial statements are immediately
available preceding such date of determination: (a) any acquisition that has
been made by such Person or any of its Restricted Subsidiaries, or approved and
expected to be consummated within 30 days of the date of determination,
including, in each case, through a merger or consolidation, and including any
related financ-
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ing transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the date of determination (in which case
Consolidated Cash Flow for such reference period shall be calculated to include
the Consolidated Cash Flow of the acquired entities and without giving effect to
clause (c) of the proviso set forth in the definition of Consolidated Net
Income); and (b) any other transaction that may be given pro forma effect in
accordance with Article 11 of Regulation S-X as in effect from time to time; and
PROVIDED, FURTHER, that the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the date of determination, shall be excluded.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED that (a) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (b) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders; PROVIDED that such Net Income shall not be excluded if such
restrictions are permitted under Section 4.08, (c) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded and (d) the cumulative effect of a change
in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (a) the consolidated equity of the common stockholders of such
Person and its consolidated Restricted Subsidiaries as of such date plus (b) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of Preferred Stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such Preferred Stock.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of the
Board of Directors of the Company on the date of original issuance of the Series
A Notes or (b) was nominated for election to the Board of Directors of the
Company with the approval of, or whose election to the Board of Directors of the
Company was ratified by, at least a majority of the
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Continuing Directors who were members of the Board of Directors of the Company
at the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEFINITIVE NOTES" means Notes that are in the form of Exhibit A-1
attached hereto (but without including the text referred to in footnotes 1 and 3
thereto).
"DEPOSITORY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as a result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the date on which the Notes mature or are
redeemed or retired in full; PROVIDED, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof (or of any
security into which it is convertible or for which it is exchangeable) have the
right to require the issuer to repurchase such Capital Stock (or such security
into which it is convertible or for which it is exchangeable) upon the
occurrence of an Asset Sale or a Change of Control shall not constitute
Disqualified Stock if such Capital Stock (and all such securities into which it
is convertible or for which it is exchangeable) provides that the issuer thereof
will not repurchase or redeem any such Capital Stock (or any such security into
which it is convertible or for which it is exchangeable) pursuant to such
provisions prior to compliance by the Company with Section 4.10 or 4.14 hereof,
as the case may be.
-8-
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OFFER" means the offer that is required to be made by the
Company pursuant to the Registration Rights Agreement to exchange Series B Notes
for Series A Notes.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries (including H&H and its Subsidiaries) in existence on the
date of this Indenture including, without limitation, the Obligations of the
Company and its Restricted Subsidiaries under (i) the Close Corporation and
Shareholders Agreement of Ohio Coatings Company as existing on the date of the
Indenture and the guarantee by WPC or any Restricted Subsidiary of WPC of up to
$20 million of Indebtedness of Ohio Coatings Company under the Credit Agreement
between Ohio Coatings Company and National City Bank, Northeast, or (ii) the
Keepwell Agreement, dated December 28, 1995, between WPC, WPSC, the Company and
the lenders party thereto as existing on the date of the Indenture to the extent
permitted by the WHX Agreements, until such amounts are repaid.
"FUTURE PAYABLES TRANSACTION" means, as of any date, a financing
arrangement of the Company or any Restricted Subsidiary of the Company involving
the sale of Precious Metals actually owned by the Company or any Restricted
Subsidiary as of such date and the contemporaneous purchase, on a future payment
and delivery basis, by the Company or such Restricted Subsidiary of a
substantially equivalent quantity of Precious Metals of the same type.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"GLOBAL NOTE" means, individually and collectively, the Regulation S
Global Note and the 144A Global Note.
-9-
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any party of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under interest rate swap agreements, interest rate
cap agreements, interest rate collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"H&H" means Handy & Harman, a New York corporation.
"H&H 7.31% NOTES" means $125.0 million aggregate principal amount of
7.31% Senior Notes due April 30, 2004 of H&H.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as Indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (a) the
accredit value thereof, in the case of any Indebtedness that does not require
current payments of interest and (b) the principal amount thereof, in the case
of any other Indebtedness. Indebtedness shall not include obligations of the
Company and its Restricted Subsidiaries pursuant to postretirement employee
benefit plans and pension plans.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDIRECT PARTICIPANT" means a Person who holds an interest through a
Participant.
-10-
"INITIAL PURCHASERS" means Donaldson, Lufkin & Jenrette Securities
Corporation and Citicorp Securities, Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees by the referent Person of, and Liens on any
assets of the referent Person securing, Indebtedness or other obligations of
other Persons), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.07 hereof.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"LETTER OF CREDIT FACILITY" means the Letter of Credit Agreement, dated
as of August 22, 1994, among WPSC and Citibank, N.A., as the same may be
amended, supplemented or otherwise modified including any refinancing,
refunding, replacement or extension thereof and whether by the same or any other
lender or group of lenders, PROVIDED, that the aggregate amount of letters of
credit available thereunder may not exceed $50,000,000.
"LETTER OF UNDERTAKING" means that certain letter of undertaking dated
July 21, 1997 from the Company to The Sanwa Bank, Limited, as existing on the
date of the Indenture.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed,
-11-
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"LIQUIDATED DAMAGES" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"MERGER" means the merger of HN Acquisition Corp., a New York
corporation and a wholly owned subsidiary of the Company, with and into H&H
pursuant to an agreement and plan of merger dated as of March 1, 1998, as
amended, among the Company, HN Acquisition Corp. and H&H.
"NET CASH PROCEEDS" means with respect to any issuance or sale of
common stock of the Company, the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' fees, broker's commissions and
consultant and any other fees actually incurred in connection with such issuance
or sale.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) and (b)
any extraordinary or nonrecurring gain or loss, together with any related
provision or credit for taxes on such extraordinary or nonrecurring gain or
loss.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
(without duplication) (a) the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
sales commissions, recording fees, title transfer fees, title insurance
premiums, appraiser fees and costs incurred in connection with preparing such
asset for sale) and any relocation expenses incurred as a result thereof, (b)
taxes paid or estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), (c) amounts required to be applied to the repayment of
Indebtedness (other than Permitted Working Capital Indebtedness) secured by a
Lien on the asset or assets that were the subject of such Asset Sale and (d) any
reserve established in accordance with GAAP or any amount placed in escrow, in
either case for adjustment in respect of the sale price of such asset or assets,
until such time as such reserve is reversed or such escrow ar-
-12-
rangement is terminated, in which case Net Proceeds shall include only the
amount of the reserve so reversed or the amount returned to the Company or its
Restricted Subsidiaries from such escrow arrangement, as the case may be.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise) or (c) constitutes the lender, and (ii) with respect to which no
default (including any rights that the Holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"NOTE CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"NON-U.S. PERSON" means a Person who is not a U.S. Person as defined in
Section 902(o) of the Securities Act.
"NOTE OBLIGATIONS" means all Obligations of the Company with respect to
the Notes.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
"OFFERING" means the offering of the Series A Notes by the Company.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"OFFICER'S CERTIFICATE" means a certificate signed on behalf of the
Company by the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, that meets the
requirements of Section 10.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.05 hereof. The
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counsel may be an employee of or counsel to the Company, any Restricted
Subsidiary of the Company or the Trustee.
"OWNED PRECIOUS METAL INVENTORY" means all Precious Metals acquired by
the Company or any Restricted Subsidiary of the Company in a Future Payables
Transaction and all Precious Metals owned by the Company or any Restricted
Subsidiary of the Company up to an aggregate amount of ounces for each type of
Precious Metal as set forth below:
Gold -- 100,998
Silver -- 14,749,005
Platinum -- 944
Palladium -- 49,701
"PARTICIPANT" means with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"PERMITTED INVESTMENTS" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company, (b) any Investment in Cash
Equivalents, U.S. Government Obligations and Triple A Rated Securities, (c) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person that is engaged in the same line of business as the Company and its
Restricted Subsidiaries were engaged in on the date of this Indenture or a line
of business or manufacturing or fabricating operation reasonably related thereto
(including any downstream steel manufacturing or processing operation or
manufacturing or fabricating operation in the construction products business) if
as a result of such Investment (i) such Person becomes a Wholly Owned Restricted
Subsidiary of the Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Restricted
Subsidiary of the Company, (d) any Investment made as a result of the receipt of
non-cash consideration from (i) an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof or (ii) a disposition of assets that does
not constitute an Asset Sale, (e) any Investment acquired solely in exchange for
Equity Interests (other than Disqualified Stock) of the Company, (f) Investments
existing as of the date of the Indenture and (g) other Investments in any Person
that is engaged in the same line of business as the Company and its Restricted
Subsidiaries were engaged in on the date of the Indenture or a line of business
or manufacturing or fabricating operation reasonably related thereto (including
any downstream steel manufacturing or processing operation or manufacturing or
fabricating operation in the construction products business) which Investment
has a fair market value (as determined by a resolution of the Board of Directors
of the Company and set forth in an officer's certificate delivered to the
Trustee), when taken
-14-
together with all other investments made pursuant to this clause (g) that are at
the time outstanding, not to exceed $10.0 million.
"PERMITTED LIENS" means (a) Liens existing as of the date of this
Indenture; (b) Liens in favor of the Company and its Restricted Subsidiaries;
(c) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Company or any Restricted Subsidiary of the
Company, PROVIDED that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company or any of its
Restricted Subsidiaries; (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
PROVIDED that such Liens were not incurred in contemplation of such acquisition;
(e) pledges or deposits under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public statutory
obligations of such Person or deposits of cash or United States Government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent in each
case incurred in the ordinary course of business (f) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently pursued, PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor, (g) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $10.0 million at any one time outstanding and that (1) are
not incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of business)
and (2) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of business by
the Company or such Restricted Subsidiary; (h) Liens securing Permitted
Refinancing Indebtedness, PROVIDED that the Company or such Restricted
Subsidiary was permitted to incur such Liens with respect to the Indebtedness so
refinanced; and (i) minor encroachments, encumbrances, easements or reservations
of, or rights of others for, rights-of-way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real properties all of which do not materially impair the value
or utility for its intended purposes of the real property to which they relate
or Liens incidental to the conduct of the business of such Person or to the
ownership of its properties.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness
-15-
(other than Indebtedness under Permitted Working Capital Indebtedness) of the
Company or any of its Restricted Subsidiaries; PROVIDED that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus premium, if any, and accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (b) such Permitted
Refinancing Indebtedness has a final maturity date no earlier than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (c) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at least
as favorable, taken as a whole, to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded and such Indebtedness shall not have any
scheduled principal payment prior to the 91st day after the final maturity date
of the Notes and (d) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; PROVIDED, HOWEVER, that a
Restricted Subsidiary may guarantee Permitted Refinancing Indebtedness incurred
by the Company, whether or not such Restricted Subsidiary was an obligor or
guarantor of the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded. Notwithstanding the foregoing, any extension, refinancing,
renewal, replacement, defeasance or refunding of the H&H 7.31% Notes need not
comply with clause (b) of the PROVISO to the immediately preceding sentence.
"PERMITTED WORKING CAPITAL INDEBTEDNESS" means Indebtedness of
the Company and its Restricted Subsidiaries under any agreement, instrument,
facility or arrangement that is intended to provide working capital financing or
financing for general corporate purposes (including any asset securitization
facility involving the sale of accounts receivable); PROVIDED that the aggregate
outstanding amount of such Indebtedness of the Company and its Restricted
Subsidiaries, at the time of incurrence, shall not exceed the lesser of (a) the
sum of (i) 60% of the net aggregate book value of all inventory (100% of the
aggregate fair market value in the case of the Owned Precious Metal Inventory)
of the Company and its Restricted Subsidiaries at such time and (ii) 80% of the
net aggregate book value of all accounts receivable (net of bad debt expense) of
the Company and its Restricted Subsidiaries at such time and (b) the sum of (i)
$350.0 million and (ii)100% of the aggregate fair market value of the Owned
Precious Metal Inventory.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organiza-
-16-
tion or government or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).
"PRECIOUS METALS" means any precious metals, including, without
limitation, gold, silver, palladium and platinum.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated) of
such person's preferred or preference stock, whether outstanding on the date of
this Indenture or issued thereafter, and including, without limitation, all
classes and series of preferred or preference stock of such Person.
"PUBLIC EQUITY OFFERING" means an underwritten offering of common stock
of the Company registered under of the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"RECEIVABLES FACILITY" means the program for the issuance and placement
from time to time of trade receivable-backed adjustable rate securities, all as
contemplated by that certain Pooling and Servicing Agreement, dated as of August
1, 1994, between Wheeling-Pittsburgh Funding, Inc., WPSC, Bank One, Columbus,
N.A. and Wheeling-Pittsburgh Trade Receivable Master Trust and that certain
Receivables Purchase Agreement, dated as of August 1, 1994, between WPSC and
Wheeling-Pittsburgh Funding, Inc., as each may be amended, supplemented or
otherwise modified including any refunding, replacement or extension thereof.
"REPLACEMENT ASSETS" means (x) properties and assets (other than cash
or any Capital Stock or other security) that will be used in a business of the
Company and its Restricted Subsidiaries conducted on the date of this Indenture
or in a line of business or manufacturing or fabricating operation reasonably
related thereto (including any downstream steel processing or manufacturing
operation or manufacturing or fabricating operation in the construction products
business) or (y) Capital Stock of any Person that is engaged in a business
referred to in clause (x) and that will become on the date of the acquisition
thereof a Wholly Owned Restricted Subsidiary of the Company as a result of such
acquisition.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of April 7, 1998, by and among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
-17-
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL NOTE" means one of the Regulation S Temporary
Global Note or the Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global note
issued following the 40-day restricted period (as defined in Regulation S) that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 3 to the form of the Note attached hereto as Exhibit
A-1, and that is deposited with the Note Custodian and registered in the name of
the Depository, representing a series of Notes sold in reliance on Regulation S.
"REGULATION S TEMPORARY GLOBAL NOTE" means a single temporary global
note in the form of the Note attached hereto as Exhibit A-2 that is deposited
with the Note Custodian and registered in the name of the Depository for the
accounts of Euroclear and Cedel, representing a series of Notes sold in reliance
on Regulation S.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Department of the Trustee (or any successor
department of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED BENEFICIAL INTEREST" means any beneficial interest of a
Participant or Indirect Participant in the 144A Global Note or the Regulation S
Global Note.
"RESTRICTED DEFINITIVE NOTES" means the Definitive Notes that must bear
the legend set forth in Section 2.06(f) hereof.
"RESTRICTED GLOBAL NOTES" means the 144A Global Note and the Regulation
S Global Note, each of which shall bear the legend set forth in Section 2.06(f)
hereof.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary. As of the date of this Indenture, H&H
and its Subsidiaries shall be deemed to be Restricted Subsidiaries of the
Company, unless and until any such Subsidiary is designated by the Board of
Directors of the Company to be an Unrestricted Subsidiary in compliance with
this Indenture.
-18-
"REVOLVING CREDIT FACILITY" means the Second Amended and Restated
Credit Agreement, dated as of December 28, 1995, among WPSC, the lenders party
thereto and Citibank, N.A. as agent, as the same may be amended, supplemented or
otherwise modified including any refinancing, refunding, replacement or
extension thereof and whether by the same or any other lender or groups of
lenders.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement between the
Company and WPC as in effect on the date of this Indenture.
"TENDER OFFER" means the tender offer commenced March 6, 1998 by HN
Acquisition Corp., a wholly-owned subsidiary of the Company, to purchase at a
price of $35.25 cash per share, up to all of the outstanding shares of common
stock of H&H (other than shares owned by WHX or its Subsidiaries).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
-19-
"TRANSFER RESTRICTED SECURITIES" means securities that bear or are
required to bear the legend set forth in Section 2.06(f) hereof.
"TREASURY RATE" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519)
which has become publicly available at least two business days prior to the
Redemption Date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) most nearly equal to the
period from the redemption date to April 15, 2002; PROVIDED, HOWEVER, that if
the period from the redemption date to April 15, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to April 15, 2002 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"TRIPLE A RATED SECURITIES" means any securities having a rating of at
least AAA by Standard & Poor's Rating Service or at least Aaa by Moody's
Investors Service, Inc.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UNIMAST" means Unimast Incorporated, an Ohio corporation.
"UNRESTRICTED GLOBAL NOTES" means one or more Global Notes that do not
and are not required to bear the legend set forth in Section 2.06(f) hereof.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to
a resolution of the Board of Directors of the Company, but only to the extent
that such Subsidiary (a) has no Indebtedness other than Non-Recourse Debt, (b)
is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless such agreement,
contract, arrangement or understanding does not violate the terms of Section
4.11 hereof, (c) is a Person with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results, in each case, except to the extent otherwise
permitted by the Indenture. Any such designation by
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the Board of Directors of the Company shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution giving effect to such
designation and an officers' certificate certifying that such designation
complied with the foregoing conditions and was permitted under Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date (and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof, the Company
shall be in default of such covenant). The Board of Directors of the Company may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
PROVIDED, HOWEVER, that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (A) such Indebtedness is permitted under the covenant described
under Section 4.09 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period,
and (B) no Default or Event of Default would be in existence following such
designation. The following Subsidiaries of the Company are designated as
Unrestricted Subsidiaries as of the date of this Indenture: (i) Monessen
Southwestern Railway Company; (ii) Wheeling Pittsburgh Funding, Inc., and (iii)
W-P Coal Company.
"U.S. GOVERNMENT OBLIGATIONS" means direct, fixed-rate obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which mature (or may be put to the issuer by the Holder at no
less than par) no later than the maturity date of the Notes.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"WHEELING-NISSHIN" means Wheeling-Nisshin, Inc., a Delaware
corporation.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
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"WHX AGREEMENTS" mean (i) the Intercreditor, Indemnification and
Subordination Agreement by and among the Company, WPC, WPSC and Unimast and (ii)
the Tax Sharing Agreement, in each case as in effect on the date of this
Indenture.
"WPC" means Wheeling-Pittsburgh Corporation, a Delaware corporation.
"WPC 9 1/4% NOTES" means $275.0 aggregate principal amount of 9 1/4%
Senior Notes due 2007 of WPC.
"WPN" means WPN Corp., a New York corporation.
"WPSC" means Wheeling-Pittsburgh Steel Corporation, a Delaware
corporation.
Section 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
"40-day Restricted Period" 2.01
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.14
"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
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Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is as and to the extent required incorporated by reference in and made a part of
this Indenture. Any terms incorporated in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1 or Exhibit A-2 hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be issued in denominations of $1,000 and integral multiples thereof.
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The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(a) GLOBAL NOTES. Notes offered and sold in connection with the
Offering by the Initial Purchasers to QIBs in reliance on Rule 144A otherwise
than in reliance on Regulation S, shall be issued initially in the form of 144A
Global Notes, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, as custodian of the Depository, and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the 144A Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.
Notes offered and sold in connection with the Offering by the Initial
Purchaser in reliance on Regulation S, if any, shall be issued initially in the
form of the Regulation S Temporary Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as
custodian for the Depository, and registered in the name of the Depository or
the nominee of the Depository for the accounts of designated agents holding on
behalf of Euroclear or Cedel, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. Until termination of the "40-DAY RESTRICTED
PERIOD" (as defined in Regulation S) ownership of beneficial interests in the
Regulation S Temporary Global Note will be limited to Persons that have accounts
with Euroclear or Cedel or Persons who hold interests through Euroclear or
Cedel, and any resale or transfer of such interests to U.S. Persons (within the
meaning of Regulation S) shall not be permitted during the 40-day restricted
period unless such resale or transfer is made pursuant to Rule 144A or
Regulation S. The 40-day restricted period shall be terminated upon the receipt
by the Trustee of (i) a written certificate from the Depository, together with
copies of certificates from Euroclear and Cedel certifying that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Temporary Global Note (except to
the extent of any beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global Note, all
as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officer's
Certificate from the Company. Within a reasonable period of time following the
expiration of the 40-day restricted period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in the Regulation S Permanent Global Note upon delivery to DTC of certification
of compliance with the transfer restrictions applicable to the Notes and
pursuant to Regulation S under the Securities Act as here-
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inafter provided. Following the termination of the 40-day restricted period,
beneficial interests in the Regulation S Permanent Global Note may also be held
through organizations other than Cedel or Euroclear that are Participants. The
aggregate principal amount of the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depository
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Note Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Global Note, if any, that are held by Participants
through Euroclear or Cedel. Neither the Company nor the Trustee shall have any
obligation to notify Holders of any such procedures or to monitor or enforce
compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to
144A Global Notes and Regulation S Global Notes deposited with or on behalf of
the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Trustee as custodian for the
Depository.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the Note
Custodian as custodian for the Depository or under such Global Note, and the
Depository may be treated by
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the Company, the Trustee and any Agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
Agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Participants, the operation of
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) DEFINITIVE NOTES. Notes issued in certificated form shall be
substantially in the form of Exhibit A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
Section 2.02. EXECUTION AND AUTHENTICATION.
Two Officers or one Officer and the Secretary or any Assistant
Secretary shall sign the Notes for the Company by either manual or facsimile
signature. The Company's seal shall be reproduced, impressed, affixed or
imprinted on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated or at any time thereafter, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. Such signature shall be conclusive evidence that the Note has
been authenticated under this Indenture. The form of Trustee's certificate of
authentication to be borne by the Notes shall be substantially as set forth in
Exhibit A-1 or Exhibit A-2 hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers or one Officer and the Secretary or any Assistant Secretary,
authenticate Notes for original issue up to the aggregate principal amount
stated in paragraph 4 of the Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
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Section 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, and such agreement shall incorporate the TIA's provisions of this
Indenture that relate to such Agent. The Company or any of its Restricted
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent other than the Trustee shall agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal of or premium,
interest or Liquidated Damages, if any, on the Notes, and will notify the
Trustee of any default by the Company (or any other obligor of the Notes) in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
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Section 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(f) of this Section 2.06. Only Persons who acquire Notes in transfers made
pursuant to Rule 144A, Rule 144 under the Act or pursuant to an effective
registration statement under the Securities Act and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction are permitted to take delivery in the form of a
beneficial interest in a Rule 144A Global Note. Only Persons who acquire Notes
in transfers made pursuant to Regulation S are permitted to take delivery in the
form of a beneficial interest in a Regulation S Global Note. Persons who acquire
Notes pursuant to an exemption under the Securities Act other than Rule 144A,
Rule 144 or Regulation S are required to take delivery in the form of Definitive
Notes in accordance with the procedures set forth in Section 2.06(c) hereof and
are not permitted to take delivery in the form of a beneficial interest in a
Global Note. Transfers of beneficial interests in the Global Notes to Persons
required to take delivery thereof in the form of an interest in another Global
Note shall be permitted as follows:
(i) 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE. If, at any
time, an owner of a beneficial interest in a 144A Global Note deposited
with the Depository (or the Trustee as custodian for the Depository)
wishes to transfer its beneficial interest in such 144A Global Note to
a Person who is required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such owner shall,
subject to the Applicable Procedures, exchange or cause the exchange of
such interest for an equivalent beneficial interest in a Regulation S
Global Note as provided in this Section 2.06(a)(i). Upon receipt by the
Trustee of (A) instructions
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given in accordance with the Applicable Procedures from a Participant
directing the Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the 144A Global Note to be exchanged, (B) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the
Depository and the Euroclear, Cedel or other Participant account to be
credited with such increase, and (C) a certificate in the form of
Exhibit B-1 hereto given by the owner of such beneficial interest
stating that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of Regulation
S, then the Trustee, as Registrar, shall instruct the Depository to
reduce or cause to be reduced the aggregate principal amount of the
applicable 144A Global Note and to increase or cause to be increased
the aggregate principal amount of the applicable Regulation S Global
Note by the principal amount of the beneficial interest in the 144A
Global Note to be exchanged or transferred, to credit or cause to be
credited to the account of the Person specified in such instructions, a
beneficial interest in the Regulation S Global Note equal to the
reduction in the aggregate principal amount at maturity of the 144A
Global Note, and to debit, or cause to be debited, from the account of
the Person making such exchange or transfer of the beneficial interest
in the 144A Global Note that is being exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO 144A GLOBAL NOTE. If, at any
time, an owner of a beneficial interest in a Regulation S Global Note
deposited with the Depository or with the Trustee as custodian for the
Depository wishes to transfer its beneficial interest in such
Regulation S Global Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a 144A Global Note,
such owner shall, subject to the Applicable Procedures, exchange or
cause the exchange of such interest for an equivalent beneficial
interest in a 144A Global Note as provided in this Section 2.06(a)(ii).
Upon receipt by the Trustee of (A) instructions from Euroclear, Cedel
or another participant, if applicable, and the Depository, directing
the Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged, such
instructions to contain information regarding the Participant account
with the Depository to be credited with such increase, (B) a written
order given in accordance with the Applicable Procedures containing
information regarding the Participant account of the Depository and (C)
a certificate in the form of Exhibit B-2 attached hereto given by the
owner of such beneficial interest stating (1) if the transfer is
pursuant to Rule 144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the Person acquiring
such interest in a 144A Global Note is a QIB and is obtaining such
beneficial
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interest in a transaction meeting the requirements of Rule 144A, (2)
that the transfer complies with the requirements of Rule 144 under the
Securities Act, or (3) that the transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
each case of clause (1), (2) or (3) above, in accordance with any
applicable securities laws of any state of the United States or any
other applicable jurisdiction, then the Trustee, as Registrar, shall
instruct the Depository to reduce or cause to be reduced the aggregate
principal amount at maturity of such Regulation S Global Note and to
increase or cause to be increased the aggregate principal amount at
maturity of the applicable 144A Global Note by the principal amount at
maturity of the beneficial interest in the Regulation S Global Note to
be exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depository, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the applicable 144A Global Note
equal to the reduction in the aggregate principal amount at maturity of
such Regulation S Global Note and to debit or cause to be debited from
the account of the Person making such transfer the beneficial interest
in the Regulation S Global Note that is being exchanged or transferred.
(b) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney and contains a signature guarantee, duly authorized in writing
and the Registrar received the following documentation (all of which may be
submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Securities, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Transfer
Restricted Security is being transferred to the Company or any
of its Subsidiaries, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto);
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 under the Securi-
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ties Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
such Holder (in substantially the form of Exhibit B-3 hereto);
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 904 under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto);
(D) if such Transfer Restricted Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) or (C) above, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto), a
certification substantially in the form of Exhibit C hereto
from the transferee, and, if such transfer is in respect of an
aggregate principal amount of Notes of less than $100,000, an
Opinion of Counsel acceptable to the Company that such
transfer is in compliance with the Securities Act and any
applicable blue sky laws of any state of the United States; or
(E) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto) and an Opinion
of Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act
and any applicable blue sky laws of any state of the United
States.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A 144A GLOBAL NOTE OR
REGULATION S GLOBAL NOTE FOR A DEFINITIVE NOTE.
(i) Any Person having a beneficial interest in a 144A Global
Note and, after the termination of the 40-day restricted period, any
Person having a beneficial interest in a Regulation S Permanent Global
Note may upon request, subject to the Applicable Procedures, exchange
such beneficial interest for a Definitive Note, upon receipt by the
Trustee of written instructions or such other form of instructions as
is customary for the Depository (or Euroclear, Cedel or another
Participant, if applicable), from the Depository or its nominee on
behalf of any Person having a beneficial interest in a 144A Global Note
or Regulation S Permanent Global Note, and, in the case of a Transfer
Restricted Security, the following additional information and documents
(all of which may be submitted by facsimile):
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(A) if such beneficial interest is being transferred
to the Person designated by the Depository as being the
beneficial owner or to the Company or any of its Subsidiaries,
a certification to that effect from such Person (in
substantially the form of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B-4 hereto);
(C) if such beneficial interest is being transferred
to an Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel if the
Company so requests) other than those listed in subparagraph
(B) above, a certification to that effect from such Holder (in
substantially the form of Exhibit B-4 hereto) and a
certification from the applicable transferee (in substantially
the form of Exhibit C hereto) and, if such transfer is in
respect of an aggregate principal amount of Notes of less than
$100,000, an Opinion of Counsel acceptable to the Company that
such transfer is in compliance with the Securities Act and any
applicable blue sky laws of any state of the United States; or
(D) if such beneficial interest is being transferred
in reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit B-4 hereto) and an Opinion of Counsel from the
transferee or the transferor reasonably acceptable to the
Company and to the Registrar to the effect that such transfer
is in compliance with the Securities Act and any applicable
blue sky laws of any state of the United States,
in which case the Trustee or the Note Custodian, at the direction of
the Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian,
cause the aggregate principal amount of 144A Global Notes or
Regulation S Permanent Global Notes, as applicable, to be reduced
accordingly and, following such reduction, the Company shall execute
and, the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
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(ii) Definitive Notes issued in exchange for a
beneficial interest in a 144A Global Note or Regulation S Global
Note, as applicable, pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its Participants or
Indirect Participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(e) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF DEPOSITORY. IF AT
ANY TIME:
(i) the Depository for the Notes notifies the Company that the
Depository is unwilling or unable to continue as Depository for the
Global Notes and a successor Depository for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes
under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(f) LEGENDS.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing a Global Note and a
Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN
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THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (B) IT IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or pursuant
to an effective registration statement under the Securities Act:
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(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth
in (i) above and rescind any restriction on the transfer of
such Transfer Restricted Security upon certification from the
transferring Holder substantially in the form of Exhibit B-3
hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set forth in
(i) above, but shall continue to be subject to the provisions
of Section 2.06(a) and (c) hereof; PROVIDED, HOWEVER, that
with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note or a
Definitive Note that does not bear the legend set forth in (i)
above, which request is made in reliance upon Rule 144 or
pursuant to an effective registration statement, the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 or pursuant to an
effective registration statement (such certification to be
substantially in the form of Exhibit B-4 hereto).
(iii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security
represented by a Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than
exemptions pursuant to Rule 144 under the Securities Act) in which
the Holder or the transferee provides an Opinion of Counsel to the
Company and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion of
Counsel shall also state that the transfer restrictions contained in
the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth
in (i) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set forth in
(i) above, but shall continue to be subject to the provisions
of Section 2.06(a) and (c) hereof.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in ac-
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cordance with Section 2.02 hereof, the Trustee shall authenticate (A)
one or more Unrestricted Global Notes in aggregate principal amount
equal to the principal amount of the Restricted Beneficial Interests
accepted for exchange in the Exchange Offer and (B) Definitive Notes
that do not bear the legend set forth in this Section 2.06(f) in an
aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange
Offer, in each case tendered for acceptance by Persons that are not (1)
broker-dealers, (2) Persons participating in the distribution of the
Series B Notes or (3) Persons who are Affiliates of the Company.
Concurrently with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly and the Company shall execute and the
Trustee shall authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in Global Notes have been exchanged for Definitive Notes,
redeemed, repurchased or canceled, all Global Notes shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for Definitive Notes, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to reflect such
reduction.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, subject
to this Section 2.06, the Company shall execute and, upon the written order
of the Company signed by two Officers of the Company, the Trustee shall
authenticate Definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.07, 4.10, 4.14 and 8.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
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(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Definitive
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(v) The Company and the Registrar shall not be required:
(A) to issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on
the day of selection;
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part;
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date; or
(D) to register the transfer of a Note other than in amounts
of $1,000 or multiple integrals thereof.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and Global
Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss
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that any of them may suffer if a Note is replaced. The Company may charge for
its and the Trustee's expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the entire principal of and interest, premium, if any, and
Liquidated Damages, if any, on any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest and Liquidated Damages, if any,
on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest and Liquidated Damages, if any.
Section 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, a Subsidiary of the Company or an Affiliate, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Notes that the Company, a Subsidiary of the
Company or an Affiliate offers to purchase or acquires pursuant to an offer,
exchange offer, tender offer or otherwise shall not be deemed to be owned by the
Company, a Subsidiary of the Company or an Affiliate until legal title to such
Notes passes to the Company, such Subsidiary or such Affiliate as the case may
be.
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Section 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes. Until such exchange, Holders of temporary Notes shall be entitled to all
of the benefits of this Indenture.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and, at the request of
the Company, shall destroy canceled Notes (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
canceled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or redeemed or that have been delivered
to the Trustee for cancellation, other than as contemplated by the Exchange
Offer.
Section 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, PROVIDED that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
PRO RATA basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 days nor more than 60 days prior to the redemption date
by the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in a principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph (unless a shorter notice shall have been agreed to by
the Trustee in writing).
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
on that date. The Paying Agent shall promptly return to the Company any money
deposited with the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of and accrued interest and Liquidated
Damages, if any, on all Notes to be redeemed.
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If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest and Liquidated Damages, if any, shall
cease to accrue on the Notes or the portions of Notes called for redemption. If
a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name such Note
was registered at the close of business on such record date. If any Note called
for redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest and Liquidated Damages, if any,
not paid on such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the written order of the Company signed by two Officers of the
Company, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
Section 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Section 3.07,
the Company shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to April 15, 2002. Thereafter, the Company shall have the
option to redeem the Notes, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the applicable
redemption date, if redeemed during the twelve-month period beginning on April
15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2002............................................ 105.250%
2003............................................ 102.625%
2004 and thereafter............................. 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07,
at any time prior to April 15, 2001, the Company may redeem up to 35% of the
aggregate principal amount of Notes originally issued at a redemption price of
110.5% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date, with the net cash
proceeds of one or more Public Equity Offerings; PROVIDED, HOWEVER, that (i) at
least 65% of the aggregate principal amount of Notes initially
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issued remains outstanding immediately after the occurrence of each such
redemption and (ii) notice of such redemption occurs no later than 30 days
following the date of the consummation of such Public Equity Offering.
(c) Notwithstanding the provisions of clause (a) of this Section 3.07,
at any time prior to April 15, 2002, the Notes may also be redeemed as a whole
but not in part at the option of the Company at a redemption price equal to 100%
of the principal amount thereof plus the Applicable Premium, accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption date (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date).
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Section 3.01 through Section 3.06 hereof.
Section 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.14 hereof, the Company
shall not be required to make mandatory redemption payments with respect to the
Notes.
Section 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Notes (an "ASSET
SALE OFFER"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "OFFER PERIOD"). No later than five
Business Days after the termination of the Offer Period (the "PURCHASE DATE"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "OFFER AMOUNT") or, if less than
the Offer Amount has been tendered, all Notes validly tendered in response to
the Asset Sale Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
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Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest and Liquidated Damages after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depository, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depository or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Trustee shall select the Notes to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
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(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a PRO RATA basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officer's Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.09. The Company, the Depository or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Section 3.01 through Section 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of and premium,
interest and Liquidated Damages, if any, on the Notes on the dates and in the
manner provided in the Notes. Principal, interest, premium, if any, and
Liquidated Damages, if any, shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. New York time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, interest and Liquidated Damages, if any, then due.
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The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages, if any (without regard
to any applicable grace period), at the same rate to the extent lawful.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. REPORTS.
(a) Whether or not the Company is required to do so by the rules and
regulations of the SEC, the Company will file with the SEC (unless the SEC will
not accept such a filing) and, within 15 days of filing, or attempting to file,
the same with the SEC, furnish to the Holders of the Notes (i) all quarterly and
annual financial and other information with respect to the Company and its
Subsidiaries that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants, and (ii) all current reports
that
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would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports. The Company shall at all times comply with TIA
ss. 314(a).
(b) The Company shall furnish to the Holders of the Notes, prospective
purchasers of the Notes and securities analysts, upon their request, the
information, if any, required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
Section 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officer's Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officer's Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
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Section 4.05. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company) or
to the direct or indirect holders of the Company's Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (b) purchase, redeem
or otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary of the Company); (c) make any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value, any Indebtedness that is subordinated in right of payment
to the Notes, except a payment of interest or principal at Stated Maturity; or
(d) make any Restricted Investment (all such payments and other actions set
forth in clauses (a) through (d) above being collectively referred to as
"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such
Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
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(ii) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Adjusted
Consolidated Leverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(iii) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture, is less than the sum of (A)
50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) commencing April 1, 1998 to the end of the Company's
most recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (B) 100% of the aggregate Net Cash Proceeds received by the
Company from the issue or sale since the date of this Indenture of Equity
Interests of the Company (other than Disqualified Stock) or of Disqualified
Stock or debt securities of the Company that have been converted into such
Equity Interests (other than any such Equity Interests, Disqualified Stock
or convertible debt securities sold to a Restricted Subsidiary of the
Company and other than Disqualified Stock or convertible debt securities
that have been converted into Disqualified Stock), plus (C) to the extent
that any Restricted Investment that was made after the date of this
Indenture is sold for cash or Cash Equivalents or otherwise liquidated or
repaid for cash, Cash Equivalents, the sum of (x) the initial amount of
such Restricted Investment and (y) 50% of the aggregate Net Proceeds
received by the Company or any Restricted Subsidiary of the Company in
excess of the initial amount of such Restricted Investment, plus (D) $25.0
million.
The foregoing provisions will not prohibit (a) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (b) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the Net Cash Proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company) of, other Equity
Interests of the Company (other than any Disqualified Stock); PROVIDED that the
amount of any such Net Cash Proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (iii) (B) of the preceding paragraph; (c) the defeasance, redemption,
repurchase, retirement or other acquisition of subordinated Indebtedness with
the Net Cash Proceeds from an incurrence of, or in exchange for, Permitted
Refinancing Indebtedness; (d) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis; (e) so long as no Default or Event of Default shall have occurred and be
continuing,
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the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company held by any member of the Company's or any of
its Restricted Subsidiaries' management upon the death, disability or
termination of employment of such member of management; PROVIDED that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $750,000 in any calendar year and $3.0 million
in the aggregate; (f) the payment by the Company or any of its Restricted
Subsidiaries of management fees to WPN or any Affiliate of WPN not to exceed
$5.5 million in any calendar year, in exchange for services provided to the
Company and its Restricted Subsidiaries by WPN or any Affiliate of WPN pursuant
to any management agreement between the Company and/or any of its Restricted
Subsidiaries and WPN and/or any of its Affiliates; (g) payments permitted under
the WHX Agreements; (h) the payment of cash dividends on the Company's
convertible preferred stock outstanding, and at the dividend rate in effect, on
the date of this Indenture, PROVIDED that in the case of any such dividend
payments made subsequent to January 1, 1999, the Company may only make such
dividend payments if, at the time of such dividend payment and after giving pro
forma effect thereto, the Company's Adjusted Consolidated Leverage Ratio would
be less than 6.0 to 1.0; and (i) the direct or indirect purchase or other
acquisition of Equity Interests of H&H pursuant to or in connection with the
Tender Offer and the Merger.
In determining the amount of Restricted Payments permissible under
clause (iii) of the first paragraph of this covenant, amounts expended pursuant
to clauses (a), (e) and (h) (only with respect to dividend payments made
subsequent to January 1, 1999) of the immediately preceding paragraph shall be
included as Restricted Payments for purposes of such clause (iii).
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to the extent
repaid in cash) in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation. All such outstanding Investments will
be deemed to constitute Investments in an amount equal to the greater of (a) the
net book value of such Investments at the time of such designation and (b) the
fair market value of such Investments at the time of such designation. Such
designation will be permitted only if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined by
the Board of Directors of the Company whose resolution with
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respect thereto shall be delivered to the Trustee. Not later than the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
officer's certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.07 were computed.
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) (i) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits, or (ii) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the Company or any of its
Restricted Subsidiaries or (c) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (1) Existing Indebtedness (other
than Permitted Working Capital Indebtedness) as in effect on the date of this
Indenture, (2) Permitted Working Capital Indebtedness; PROVIDED that the
restrictions contained in the agreements governing such Permitted Working
Capital Indebtedness are not more restrictive in any material respect, taken as
whole, as determined in the good faith judgment of the Board of Directors of the
Company, than those contained in the Revolving Credit Facility as in effect on
the date of this Indenture, (3) this Indenture and the Notes, (4) applicable
law, (5) any instrument governing Indebtedness or Capital Stock of a person
acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any person, or the properties or
assets of any person, other than the person, or the property or assets of the
person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred, (6)
customary non-assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (7) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (c) above on the property so
acquired, (8) customary provisions in bona fide contracts for the sale of
property or assets, or (9) Permitted Refinancing Indebtedness and other
Indebtedness permitted to be incurred under this Indenture (other than Permitted
Working Capital Indebtedness), PROVIDED that the restrictions contained
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in the agreements governing such Permitted Refinancing Indebtedness or other
Indebtedness are not more restrictive in any material respect, taken as a whole,
as determined in the good faith judgment of the Board of Directors of the
Company, than the most restrictive of such provisions contained in either the
indenture governing the WPC 9 1/4% Notes or in the Revolving Credit Facility, in
each case as in effect on the date of this Indenture.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) and that the Company will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the
Company and its Restricted Subsidiaries may incur Indebtedness and Restricted
Subsidiaries of the Company may issue shares of Preferred Stock if the Company's
Adjusted Consolidated Leverage Ratio would have been less than 5.0 to 1, on a
pro forma basis after giving effect to the incurrence of such Indebtedness or
the issuance of such Preferred Stock, as the case may be, and the application of
the net proceeds therefrom.
Notwithstanding the foregoing, the Company and, to the extent set forth
below, its Restricted Subsidiaries may incur the following (each of which shall
be given independent effect):
(a) Indebtedness of the Company under the Notes and this Indenture;
(b) Permitted Working Capital Indebtedness of the Company and its
Restricted Subsidiaries;
(c) Existing Indebtedness (other than Permitted Working Capital
Indebtedness or Indebtedness under the Letter of Credit Facility);
(d) Indebtedness of the Company and its Restricted Subsidiaries under
the Letter of Credit Facility;
(e) Capital Expenditure Indebtedness, Capital Lease Obligations and
purchase money Indebtedness of the Company and its Restricted Subsidiaries
in an aggregate principal amount not to exceed $70.0 million at any time
outstanding;
(f) (i) Hedging Obligations of the Company and its Restricted
Subsidiaries covering Indebtedness of the Company or such Restricted
Subsidiary (which Indebtedness is otherwise permitted to be incurred under
this covenant) to the extent the notional principal amount of any such
Hedging Obligation does not exceed the principal amount of the Indebtedness
to which such Hedging Obligation relates; or (ii) repurchase agreements,
reverse repurchase agreements or similar agreements re-
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lating to marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition; provided that the
terms of such agreements comply with the guidelines set forth in
FederalAFinancial Agreements of Depository Institutions with Securities and
Others (or any successor guidelines), as adopted by the Comptroller of the
Currency;
(g) Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed $45.0 million at any time
outstanding;
(h) Indebtedness of the Company representing guarantees of Indebtedness
incurred by one of its Restricted Subsidiaries pursuant to, and in
compliance with, another provision of this covenant;
(i) Indebtedness of the Company or any of its Restricted Subsidiaries
representing guarantees of a portion of the Indebtedness of
Wheeling-Nisshin which is not greater than the Company's or such Restricted
Subsidiary's pro rata ownership of the outstanding Equity Interests in
Wheeling-Nisshin; PROVIDED, HOWEVER, that (i) in the case of a guarantee of
any such Indebtedness by the Company, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (ii) at the time of incurrence and after giving
effect to the Indebtedness of Wheeling-Nisshin which is being guaranteed,
the Consolidated Interest Coverage Ratio of Wheeling-Nisshin for its most
recently ended four full fiscal quarters for which internal financial
statements are available would have been at least 2.00 to 1, determined on
a pro forma basis as if any additional Indebtedness had been incurred at
the beginning of such four-quarter period;
(j) Indebtedness of the Company or its Restricted Subsidiaries
representing guarantees of Indebtedness of Wheeling-Nisshin required to be
made pursuant to the Letter of Undertaking not to exceed $10.0 million;
(k) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and any of its
Wholly Owned Restricted Subsidiaries; PROVIDED, HOWEVER, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (ii) (A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Wholly Owned Restricted Subsidiary of
the Company and (B) any sale or other transfer of any such Indebtedness to
a Person that is not either the Company or a Wholly Owned Re-
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stricted Subsidiary of the Company shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be; and
(l) any Permitted Refinancing Indebtedness representing a replacement,
renewal, refinancing or extension of all or any portion of the Indebtedness
permitted under the first paragraph and clauses (a) and (c) of this
covenant.
In the event that the incurrence of any Indebtedness would be permitted
by the first paragraph set forth above or one or more of the provisions set
forth in the second paragraph above, the Company may designate (in the form of
an officer's certificate delivered to the Trustee) the particular provision of
this Indenture pursuant to which it is incurring such Indebtedness.
Section 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (a) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors of the Company set forth in an officer's
certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (b) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; PROVIDED, HOWEVER, that the amount of (i) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or such Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Company
or such Restricted Subsidiary from further liability and (ii) any securities,
notes or other obligations received by the Company or such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary within 60 days of receipt into cash or Cash Equivalents (to the
extent of the cash or Cash Equivalents received) shall be deemed to be cash or
Cash Equivalents for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or any such Restricted Subsidiary shall apply such Net
Proceeds to reduce Indebtedness under Permitted Working Capital Indebtedness or
any other Indebtedness of a Restricted Subsidiary of the Company (and, in the
case of such Indebtedness other than Indebtedness under Permitted Working
Capital Indebtedness, to correspondingly reduce commitments with respect
thereto). To the extent such Net Proceeds are not utilized as contemplated in
the preceding sentence, such Net Proceeds may, within 360 days after re-
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ceipt thereof, be utilized to acquire Replacement Assets; PROVIDED that such Net
Proceeds may be invested by the Company or such Restricted Subsidiary, within
360 days after receipt thereof, in property or assets (including Capital Stock
of any Person that will become a Wholly Owned Restricted Subsidiary of the
Company as a result of such investment) not constituting Replacement Assets if
after giving effect to such Asset Sale and the application of the Net Proceeds
therefrom, the Company's Adjusted Consolidated Leverage Ratio would be less than
6.0 to 1.0. Pending the final application of any such Net Proceeds, the Company
or any such Restricted Subsidiary may otherwise invest such Net Proceeds in any
manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in this paragraph will be
deemed after the expiration of the time periods set forth above to constitute
"EXCESS PROCEEDS."
Within 30 days of each date on which the aggregate amount of Excess
Proceeds exceeds $35.0 million, the Company shall commence a PRO RATA Asset Sale
Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase
in accordance with the procedures set forth in Section 3.09 hereof. To the
extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the amount that the Company is required to repurchase, the
Company may use any remaining Excess Proceeds for general corporate purposes. If
the aggregate amount of Notes surrendered by Holders thereof exceeds the amount
that the Company is required to repurchase, the Trustee shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased). Upon completion of such offer
to purchase, the amount of Excess Proceeds shall be reset at zero.
Section 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(a) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person or, if there is no such comparable
transaction, on terms that are fair and reasonable to the Company, and (b) the
Company delivers to the Trustee (i) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess
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of $2.0 million, either (A) a resolution of the Board of Directors of the
Company set forth in an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors of the Company or (B) if there are no disinterested members of the
Board of Directors of the Company, an opinion as to the fairness to the Company
of such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing and (ii)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, an
opinion as to the fairness to the Company of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing; PROVIDED, HOWEVER, that the following shall be deemed
not to be Affiliate Transactions: (v) customary directors' fees, indemnification
or similar arrangements or any employment agreement or other compensation plan
or arrangement entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business and consistent with the past practice of the
Company or such Restricted Subsidiary; (w) transactions between or among the
Company and/or its Wholly-Owned Restricted Subsidiaries; (x) transactions
pursuant to the WHX Agreements or agreements with or applicable to any of
Wheeling-Nisshin, Ohio Coatings Company, the Empire-Iron Mining Partnership or
W-P Coal Company, in each case as in effect on the date of this Indenture; (y)
Restricted Payments that are permitted pursuant to clauses (e), (f) and (g) of
the second paragraph of Section 4.07 hereof and Indebtedness permitted to be
incurred pursuant to clauses (i) and (j) of the second paragraph of Section 4.09
hereof; and (z) the merger of the pension plans of WPC and the pension plans of
H&H and the Merger.
Section 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any income or
profits therefrom or assign or convey any right to receive income therefrom,
without making effective provision for all payments due under the Indenture and
the Notes to be directly secured on an equal and ratable basis with the
obligations so secured or, in the event such Indebtedness is subordinate in
right of payment to the Notes, prior to such Indebtedness, in each case until
such time as such obligations are no longer secured by a Lien.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may create, incur, assume or suffer to exist (each of which shall
be given independent effect):
(a) Permitted Liens;
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(b) Liens securing Indebtedness of Restricted Subsidiaries of the
Company (so long as the Company is not a co-obligor, guarantor or otherwise
directly liable with respect to such Indebtedness), which Indebtedness is
incurred in compliance with this Indenture;
(c) Liens to secure the payment of Capital Expenditure Indebtedness and
Capital Lease Obligations, provided that (i) the aggregate principal amount
of Indebtedness secured by such Liens shall not exceed the lesser of cost
or Fair Market Value of the assets or property acquired, constructed or
improved with the proceeds of such Indebtedness and (ii) such Liens shall
not encumber any other assets or property of the Company and its Restricted
Subsidiaries unless otherwise permitted under this Section 4.12;
(d) Liens secured by the Capital Stock or assets of Wheeling-Nisshin or
Ohio Coatings Company to the extent required under agreements as existing
on the date of this Indenture; and
(e) Liens on accounts receivable, inventory (including Owned Precious
Metal Inventory), intangibles necessary or useful for the sale of such
inventory and other current assets of the Company or any Restricted
Subsidiary or on Capital Stock Subsidiaries, in each case incurred to
secure Permitted Working Capital Indebtedness.
Section 4.13. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary; PROVIDED, however, that the Company shall not be
required to preserve the existence of any of its Restricted Subsidiaries, if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole.
Section 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (a "CHANGE OF CONTROL OFFER") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at an offer price
in cash equal to 101% of the aggregate principal amount thereof, plus accrued
and unpaid interest and Liquidated
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Damages, if any, thereon to the date of repurchase (the "CHANGE OF CONTROL
PAYMENT"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder and the Trustee stating: (1) that the Change of
Control Offer is being made pursuant to this Section 4.14 and that all Notes
validly tendered and not withdrawn will be accepted for payment; (2) the
purchase price and the purchase date, which shall be no earlier than 30 days but
no later than 60 days from the date such notice is mailed (the "CHANGE OF
CONTROL PAYMENT DATE"); (3) that any Note not tendered will continue to accrue
interest; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date; (5) that Holders electing to have any Notes purchased pursuant to a Change
of Control Offer will be required to surrender the Notes, properly endorsed for
transfer, together with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed and such customary documents as the
Company may reasonably request, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (6) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change of
Control.
(b) On or before 10:00 a.m. New York time on the Change of Control
Payment Date, the Company shall, to the extent lawful, (a) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (b) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Notes or portions thereof so tendered and
(c) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officer's Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; PROVIDED,
HOWEVER, that each such new Note will be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall
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publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
Section 4.15. PAYMENT FOR CONSENT.
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Indenture or the Notes unless such consideration is offered to be paid or
is paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation statement documents relating to such
consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (a) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, (b) the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company) or the entity or Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee, (c) immediately after such transaction no Default or Event of
Default exists and (d) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company, the Company or the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (A) will have Consolidated
Net Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the transaction and
(B) will, at the time of such transaction and after giving pro forma effect
thereto as if
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such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Adjusted Consolidated Leverage Ratio test set forth in the first
paragraph of Section 4.09 hereof. Notwithstanding the foregoing, the Merger
shall be permitted.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; PROVIDED, HOWEVER, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, the Notes, and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to
purchase) or otherwise;
(c) the Company fails to comply with any of the provisions of Sections
4.07, 4.09, 4.10, 4.14 or Article V hereof;
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(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture or the Notes
for 30 days after notice to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Notes then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default (i)
is caused by a failure to pay principal of or premium or interest on such
Indebtedness prior to the expiration of any grace period provided in such
Indebtedness (a "PAYMENT DEFAULT") or (ii) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0
million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any of its Subsidiaries and such judgment or judgments are not paid or
discharged for a period (during which execution shall not be effectively
stayed by reason of pending appeal or otherwise) of 60 days, PROVIDED that
the aggregate of all such undischarged judgments exceeds $10.0 million;
(g) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
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(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property of
the Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive
days; PROVIDED, HOWEVER, that if the entry of such order or decree is
appealed and dismissed on appeal then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to have been
cured.
Section 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (g) or (h) of Section
6.01 hereof occurs with respect to the Company, all outstanding Notes shall be
due and payable immediately without further action or notice. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest, premium or Liquidated Damages, if any, that has become due
solely because of the acceleration) have been cured or waived.
If an Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07 hereof,
then, upon acceleration of the Notes, an equivalent premium shall also become
and be immediately due and payable, to the extent permitted by law, anything in
this Indenture or in the Notes to the contrary notwithstanding.
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Section 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of and premium,
interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS.
Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of the
principal of or interest, premium, if any, or Liquidated Damages, if any, on the
Notes (including in connection with an offer to purchase); PROVIDED, HOWEVER,
that the Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration in accordance
with Section 6.02. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in Personal liability.
Section 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
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(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of and interest, premium, if
any, and Liquidated Damages, if any, on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to purchase),
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, interest, premium, if any, and Liquidated Damages, if any,
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and Liquidated Damages, if any, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
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Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the Trustee's
costs and expenses of collection;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes for
principal, interest, premium, if any, and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, interest, if any, and Liquidated Damages, if
any, respectively; and
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THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates
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and opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection
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from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
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Section 7.05. NOTICE OF DEFAULT.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company, or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence, bad faith or willful misconduct. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of their
obligations hereunder. The Company shall defend
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the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, PROVIDED all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
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This Indenture shall always have a Trustee who satisfies the
requirements of TIAss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss.
310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officer's Certificate, at any time, exercise its
rights under either Section 8.02 or 8.03 hereof with respect to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have discharged
its obligations with respect to all outstanding Notes, on the date the
conditions set forth in Section 8.04 below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, (which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below) and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of and interest, premium, if any, and Liquidated Damages, if any,
on such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Sections 2.03, 2.04, 2.07, 2.10 and 4.02 hereof, (c)
the rights, powers, trusts, duties and immunities
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of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Article 4 (other than those in
Sections 4.01, 4.02, 4.06 and 4.13) and Section 5.01 hereof on and after the
date the conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(f) hereof shall not constitute Events of Default.
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
U.S. Government Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of and interest,
premium, if any, and Liquidated Damages, if any, on the outstanding Notes
on the stated maturity thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
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(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness, all or a portion of
the proceeds of which will be used to defease the Notes pursuant to this
Article 8 concurrently with such incurrence or within 30 days thereof);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be based on such solvency certificates or solvency
opinions as counsel deems necessary or appropriate) to the effect that the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring
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the Holders over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities To Be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee pursuant
to Section 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable U.S.
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, or interest,
premium, if any, or Liquidated Damages, if any, on any Note and remaining
unclaimed for two years after such principal, interest, premium, if any, or
Liquidated Damages, if any, has become due and
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payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as a secured creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any
payment of principal of, or interest, premium, if any, or Liquidated Damages, if
any, on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
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(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by resolutions of the Board
of Directors of the Company authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of the
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
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It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter any of the provisions with respect to the redemption of the Notes
(including as provided in Section 4.10 and 4.14 hereof);
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal of
or interest, premium, if any, or Liquidated Damages, if any, on the Notes
(except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest, premium, if any, or Liquidated
Damages, if any, on the Notes (except as permitted in clause (g) below);
(g) waive a redemption payment with respect to any Note (including a
payment required by Section 4.10 and 4.14 hereof);
(h) make any change in the foregoing amendment and waiver provisions;
or
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(i) modify the ranking or priority of the Notes in any manner adverse
to the Holders.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until their Boards of
Directors approve it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officer's Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
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ARTICLE 10
MISCELLANEOUS
Section 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
WHX Corporation
110 East 59th Street
New York, New York 10022
Telecopier No.: (212)-355-5336
Attention: Chief Financial Officer
With a copy to:
Olshan Grundman From & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Telecopier No.: (212) 980-7177
Attention: Steven Wolosky, Esq.
If to the Trustee:
Bank One Trust Company, N.A.
Corporate Trust Account Administration
P.O. Box 710380
Columbus, Ohio 43271-0380
Telecopier No.: (614) 244-5785
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The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if Personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.03. Communication by Holders of Notes with Other HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
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(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
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Section 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
Section 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 10.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
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SIGNATURES
Dated as of April 7, 1998 WHX CORPORATION
By:/s/ Paul J. Mooney
--------------------------------
Name: Paul J. Mooney
Title: Chief Financial Officer
Dated as of April 7, 1998 BANK ONE, N.A., as trustee
By:/s/ Ruth H. Fussell
--------------------------------
Name: Ruth H. Fussell
Title: Authorized Signatory
EXHIBIT A-1
(Face of Note)
10 1/2% Senior Notes due 2005 [, Series B]
No. $_____________
CUSIP NO. [ ]
WHX CORPORATION
promises to pay to Cede & Co. or registered assigns, the principal sum of
___________ Dollars on April 15, 2005.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated: ________ __, 1998
WHX CORPORATION
By:_________________________________
Name:
Title:
(SEAL)
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Dated: April 7, 1998
Bank One, N.A.
as Trustee
By:_________________________
A-1-1
(Back of Note)
10 1/2% Senior Notes due 2005[, Series B]
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.(1)
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT)(A "QIB") OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
A-1-2
- --------
1. This paragraph should be included only if the Note is issued in global
form.
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING.(2)
1. INTEREST. WHX Corporation, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 10 1/2% per
annum from April 7, 1998 until maturity and shall pay the Liquidated Damages,
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages semi-annually on
April 15 and October 15 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "Interest Payment Date"); provided
that the first Interest Payment Date shall be October 15, 1998. Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance. The Company
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is the rate then in effect; it shall pay interest
(including post-petition in-
- ----------------
2. This paragraph should be removed upon the exchange of Series A Notes for
Series B Notes in the Exchange Offer or upon the transfer of the Series A
Notes that have been sold pursuant to the terms of the Shelf Registration
contemplated by the Registration Rights Agreement.
A-1-3
terest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the April 1 or October 1
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The Notes
will be payable as to principal, interest, premium, if any, and Liquidated
Damages, if any, at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium, if
any, and Liquidated Damages, if any, on, all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Bank One, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of April 7, 1998 ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. The
Notes are senior unsecured obligations of the Company limited to $350,000,000
aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph
5, the Company shall not have the option to redeem the Notes prior to April 15,
2002. Thereafter, the Company shall have the option to redeem the Notes, in
whole or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if
A-1-4
any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on April 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2002.................................... 105.250%
2003.................................... 102.625%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to April 15, 2002, the Company may redeem up to
35% of the aggregate principal amount of Notes originally issued at a redemption
price of 110.5% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption date, with
the net cash proceeds of one or more Public Equity Offerings; PROVIDED, HOWEVER,
that (a) at least 65% of the aggregate principal amount of Notes initially
issued remains outstanding immediately after the occurrence of each such
redemption and (b) such redemption shall occur within 30 days following the date
of the consummation of such Public Equity Offering.
(c) At any time prior to April 15, 2002, the Notes may also be redeemed
as a whole but not in part at the option of the Company, upon not less than 30
nor more than 60 days prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal amount
thereof plus the Applicable Premium, accrued interest and Liquidated Damages, if
any, thereon to the redemption date (subject to the right of Holders of record
on the relevant record dated to receive interest due on the relevant interest
payment date).
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase
(the "Change of Control Payment"). Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
A-1-5
transaction that constitutes the Change of Control and setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, within 30 days of each date on which the aggregate amount of Excess
Proceeds exceeds $35.0 million, the Company shall commence an offer to all
Holders of Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for general
corporate purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a PRO RATA basis (with such adjustments as may be
deemed appropriate by the Trustee so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders of Notes that are
the subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
A-1-6
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest or Liquidated Damages on the Notes;
(ii) default in payment when due of the principal of or premium, if any, on the
Notes; (iii) failure by the Company to comply with Sections 4.07, 4.09, 4.10 and
4.14 and Article V of the Indenture; (iv) failure by the Company for 30 days
after notice to comply with any of its other agreements in the Indenture or the
Notes; (v) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or is created after the date
of the Indenture, which default (a) is caused by a failure to pay principal of
or premium or interest on such Indebtedness prior to the expiration of any grace
period provided in such Indebtedness (a "Payment Default") or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0
million or more; (vi) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $10.0 million,
which judgments are not paid, discharged or stayed for a period of 60 days; and
(vii) certain events of bankruptcy or insolvency with respect to the Company or
any of its Significant Subsidiaries. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will be-
A-1-7
come due and payable without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. DEFEASANCE. The Notes are subject to defeasance upon the terms and
conditions specified in the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transferred Restricted Securities shall have all the rights set forth in the
Registration Rights Agreements, dated as of April 7, 1998, among the Company and
the other parties named on the signature pages thereof (the "Registration Rights
Agreement").
A-1-8
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
WHX Corporation
110 East 59th Street
New York, New York 10022
Telecopier No.: (212) 355-5336
Attention: Chief Financial Officer
A-1-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:__________________
Your Signature:__________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
A-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date: Your Signature:__________________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:__________________
Signature Guarantee.
A-1-11
SCHEDULE OF EXCHANGES OF NOTES(3)
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR OTHER NOTES HAVE BEEN
MADE:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Note officer
Amount of this Amount of this following such Trustee or
Date of Global Global decrease (or Note
Exchange Note Note increase Custodian
- -------- ---- ---- -------- ---------
- -------------
3. This should be included only if the Note is issued in global form.
A-1-12
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
10 1/2% Senior Notes due 2005
No. $_____________
CUSIP NO. [ ]
WHX CORPORATION
promises to pay to Cede & Co. or registered assigns, the principal sum of
___________ Dollars on April 15, 2005.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated: ________ __, 1998
WHX CORPORATION
By:____________________________________
Name:
Title:
(SEAL)
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
Dated: April 7, 1998
Bank One, N.A.
as Trustee
By:_________________________
A-2-1
(Back of Regulation S Temporary Global Note)
10 1/2% Senior Notes due 2005
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB") OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
A-2-2
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS NOTE IN VIOLATION OF THE FOREGOING.
Subject to the provisions hereof, WHX Corporation, a Delaware
corporation (the "Company"), promises to pay _____________ the principal sum of
____________ UNITED STATES DOLLARS (U.S. $___________) on April 15, 2005, and to
pay interest on the principal amount of this Note at the rate of 10 1/2% per
annum. Interest shall be paid in cash semi-annually in arrears on April 15 and
October 15 or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"); provided that the first Interest
Payment Date shall be October 15, 1998. Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
This Regulation S Temporary Global Note is issued in respect of an
issue of 10 1/2% Senior Notes due 2005 (the "Notes") of the Company, limited to
the aggregate principal amount of U.S. $350,000,000 issued pursuant to an
Indenture (the "Indenture") dated as of April 7, 1998, between the Company and
Bank One, N.A. as trustee (the " Trustee"), and is governed by the terms and
conditions of the Indenture governing the Notes, which terms and conditions are
incorporated herein by reference and, except as otherwise provided herein, shall
be binding on the Company and the Holder hereof as if fully set forth herein.
Unless the context otherwise requires, the terms used herein shall have the
meanings specified in the Indenture.
Until this Regulation S Temporary Global Note is exchanged for
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon although interest will continue to accrue;
until so exchanged in full, this Regulation S Temporary Global Note shall in all
other respects be entitled to the same benefits as other Notes under the
Indenture.
A-2-3
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed by and construed in accordance with
the laws of the State of New York. All references to "$," "Dollars," "dollars"
or "U.S. $" are to such coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and private debts
therein.
A-2-4
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
THE FOLLOWING EXCHANGES OF A PART OF THIS REGULATION S TEMPORARY GLOBAL NOTE FOR
OTHER GLOBAL NOTES HAVE BEEN MADE:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Note officer
Amount of this Amount of this following such Trustee or
Date of Global Global decrease (or Note
Exchange Note Note increase Custodian
- -------- -------------- -------------- -------------- ------------
A-2-5
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
[REGISTRAR]
Re: 10 1/2% Senior Notes due 2005 of WHX Corporation.
Reference is hereby made to the Indenture, dated as of April 7, 1998
(the "Indenture"), between WHX Corporation (the "Company") and Bank One, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $ _______________ principal amount of Notes
which are evidenced by one or more 144A Global Notes and held with the
Depository in the name of_____________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Notes to a Person who
will take delivery thereof in the form of an equal principal amount of Notes
evidenced by one or more Regulation S Global Notes, which amount, immediately
after such transfer, is to be held with the Depository through Euroclear or
Cedel or both.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
hereby further certifies that:
(1) The offer of the Notes was not made to a Person in the United
States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any Person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
B-1-1
(b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depository
through Euroclear, Cedel or another Participant.
Upon giving effect to this request to exchange a beneficial interest in
a 144A Global Note for a beneficial interest in a Regulation S Global Note, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to Regulation S Global Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:___________________________
Name:
Title:
Dated:
cc: WHX Corporation
B-1-2
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
[REGISTRAR]
Re: 10 1/2% Senior Notes due 2005 of WHX Corporation.
Reference is hereby made to the Indenture dated as of April 7, 1998
(the "Indenture"), between WHX Corporation (the "Company") and Bank One, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_________ principal amount of Notes which are
evidenced by one or more Regulation S Global Notes and held with the Depository
through Euroclear or Cedel in the name of ________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a Person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more 144A Global Notes, to be held with the
Depository.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that:
B-2-1
[CHECK ONE]
|_| such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Notes for
its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person
and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A;
or
|_| such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
|_| such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
and such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States or any other applicable
jurisdiction.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Notes, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to 144A Global Notes pursuant to the Indenture and the Securities
Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated:
cc: WHX Corporation
B-2-2
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
(Pursuant to Section 2.06(b) of the Indenture)
[REGISTRAR]
Re: 10 1/2% Senior Notes due 2005 of WHX Corporation
Reference is hereby made to the Indenture dated as of April 7, 1998
(the "Indenture"), between WHX Corporation (the "Company") and Bank One, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This relates to $ principal amount of Notes which are evidenced by one
or more Definitive Notes in the name of (the "Transferor"). The Transferor has
requested an exchange or transfer of such Definitive Note(s) in the form of an
equal principal amount of Notes evidenced by one or more Definitive Notes, to be
delivered to the Transferor or, in the case of a transfer of such Notes, to such
Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Notes surrendered
to the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of
such Surrendered Notes hereby certifies that:
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[CHECK ONE]
|_| the Surrendered Notes are being acquired for the Transferor's own
account, without transfer;
or
|_| the Surrendered Notes are being transferred to the Company or one of
its Subsidiaries;
or
|_| the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account, or
for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A,
in each case in a transaction meeting the requirements of Rule 144A;
or
|_| the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Notes are being transferred pursuant to an exemption
under the Securities Act other than Rule 144A, Rule 144 or Rule 904
to Person who is an Institutional Accredited Investor and the
Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Notes bearing the legend set forth in Section
2.06(f) of the Indenture and the requirements of the exemption
claimed, which certification is supported by (a) if such transfer is
in respect of a principal amount of Notes at the time of Transfer of
$100,000 or more, a certificate executed by the Transferee in the
form of Exhibit C to the Indenture, or (b) if such Transfer is in
respect of a principal amount of Notes at the time of transfer of
less than $100,000, (i) a certificate executed in the form of
Exhibit C to the Indenture and (ii) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable to
the Company and to the Registrar, to the effect that (1)
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such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of
any state of the United States;
or
|_| the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A, Rule 144, or Rule 904 and the Transferor hereby further
certifies that the Notes are being transferred in compliance with
the transfer restrictions applicable to beneficial interests in the
Global Notes and Definitive Notes bearing the legend set forth in
Section 2.06(f) of the Indenture and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act and any applicable blue sky laws of any
state of the United States;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated:
cc: WHX Corporation
B-3-3
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE NOTE
(Pursuant to Section 2.06(c) of the Indenture)
[REGISTRAR]
Re: 10 1/2% Senior Notes due 2005 of WHX Corporation
Reference is hereby made to the Indenture, dated as of April 7, 1998
(the "Indenture"), between WHX Corporation (the "Company") and Bank One, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Notes which are
evidenced by a beneficial interest in one or more 144A Global Notes or
Regulation S Global Notes in the name of (the "Transferor"). The Transferor has
requested an exchange or transfer of such beneficial interest in the form of an
equal principal amount of Notes evidenced by one or more Definitive Notes, to be
delivered to the Transferor or, in the case of a transfer of such Notes, to such
Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Notes surrendered
to the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of
such Surrendered Notes hereby certifies that:
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[CHECK ONE]
|_| the Surrendered Notes are being transferred to the beneficial owner
of such Notes;
or
|_| the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account, or
for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A,
in each case in a transaction meeting they requirements of Rule
144A;
or
|_| the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
|_| the Surrendered Notes are being transferred pursuant to an exemption
under the Securities Act other than Rule 144A, Rule 144 or Rule 904
to a Person who is an Institutional Accredited Investor and the
Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Notes bearing the legend set forth in
Section 2.06(f) of the Indenture and the requirements of the
exemption claimed, which certification is supported by (a) if such
transfer is in respect of a principal amount of Notes at the time of
Transfer of $100,000 or more, a certificate executed by the
Transferee in the form of Exhibit C to the Indenture, or (b) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $100,000, (i) a certificate executed in the
form of Exhibit C to the Indenture and (ii) an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
satisfactory to the Company and to the Registrar, to the effect that
(1)
B-4-2
such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of
any state of the United States;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A, Rule 144 or Rule 904, and the Transferor hereby further
certifies that the Notes are being transferred in compliance with
the transfer restrictions applicable to beneficial interests in the
Global Notes and Definitive Notes bearing the legend set forth in
Section 2.06(f) of the Indenture and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act and any applicable blue sky securities laws
of any state of the United States;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States or any
other applicable jurisdiction.
B-4-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:
cc: WHX Corporation
B-4-4
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
---------------, -----
Bank One, N.A., as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
We are delivering this letter in connection with the purchase of 10
1/2% Senior Notes due 2005 (the "Notes") of WHX Corporation, a Delaware
corporation (the "Company").
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act (an "INSTITUTIONAL ACCREDITED INVESTOR");
(ii) any purchase of Notes by us will be for our own account or for the
account of one or more other Institutional Accredited Investors;
(iii) in the event that we purchase any Notes, we will acquire Notes
having a minimum purchase price of at least $100,000 for our own account
and for each separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing Notes;
(v) we are not acquiring Notes with a view to any distribution thereof
in a transaction that would violate the Securities Act or the securities
laws of any State of the United States or any other applicable
jurisdiction; PROVIDED that the disposition of our property and the
property of any accounts for which we are acting as fiduciary shall remain
at all times within our control; and
(vi) we have received a copy of the Offering Memorandum relating to the
initial offering of the Notes and acknowledge that we have had access to
such financial and other information, and have been afforded the
opportunity to ask such questions of
C-1
representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase Notes.
We understand that the Notes are being offered in a transaction not
involving any public offering within the meaning of the Securities Act and that
the Notes have not been registered under the Securities Act, and we agree, on
our own behalf and on behalf of each account for which we acquire any Notes,
that such Notes may be offered, resold, pledged or otherwise transferred only
(i) to a Person whom we reasonably believe to be a qualified institutional buyer
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A under the Securities Act, in a transaction meeting the
requirements of Rule 144 under the Securities Act, outside the United States in
a transaction meeting the requirements of Rule 904 under the Securities Act, or
in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so
requests), (ii) to the Company or (iii) pursuant to an effective registration
statement under the Securities Act, and in each case, in accordance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction. We understand that the registrar will not be required
to accept for registration of transfer any Notes, except upon presentation of
evidence satisfactory to the Company that the foregoing restrictions on transfer
have been complied with.
We acknowledge that you and the Company will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-----------------------------------
[Name of Purchaser]
By: _______________________________
Name:
Title:
Address:
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