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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998.
OR
[ ] TRANSITION REPORT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-2394
WHX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 13-3768097
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
110 EAST 59TH STREET 10022
NEW YORK, NEW YORK (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 212-355-5200
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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NAME OF EACH EXCHANGE ON
TITLE OF EACH CLASS WHICH REGISTERED
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COMMON STOCK, $.01 PAR VALUE NEW YORK STOCK EXCHANGE
SERIES A CONVERTIBLE PREFERRED STOCK, $.10 PAR NEW YORK STOCK EXCHANGE
VALUE
SERIES B CONVERTIBLE PREFERRED STOCK, $.10 PAR NEW YORK STOCK EXCHANGE
VALUE
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Aggregate market value of Common Stock held by non-affiliates of the
Registrant as of March 1, 1999 was $126.9 million, which value, solely for the
purposes of this calculation excludes shares held by Registrant's officers,
directors, and their affiliates. Such exclusion should not be deemed a
determination by Registrant that all such individuals are, in fact, affiliates
of the Registrant. The number of shares of Common Stock issued and outstanding
as of March 18, 1999 was 16,976,968, including 296,962 shares of redeemable
Common Stock.
DOCUMENTS INCORPORATED BY REFERENCE:
Definitive proxy statement to be filed pursuant to Regulation 14A in
connection with the 1998 annual meeting of stockholders Part III.
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PART I
ITEM 1. BUSINESS
OVERVIEW
WHX Corporation
WHX Corporation (WHX or the Company) is a holding company formed in July
1994 to acquire and operate a diverse group of businesses on a decentralized
basis. The Company's steel related businesses are Wheeling-Pittsburgh
Corporation (WPC), a vertically integrated manufacturer of value-added flat
rolled steel products; and Unimast Incorporated (Unimast), a leading
manufacturer of steel framing and other products for commercial and residential
construction. The Company's other business segment is Handy & Harman (H&H), a
diversified industrial manufacturing company whose business units encompass: (i)
manufacturing and selling of metal wire, cable and tubing products -- primarily
stainless steel and specialty alloys; (ii) manufacturing and selling of precious
metals products and precision electroplated materials and molded parts; and
(iii) manufacturing and selling of other specialty products supplied to roofing,
construction, do-it-yourself, natural gas, electric and water industries.
STEEL AND RELATED BUSINESSES
Wheeling-Pittsburgh Corporation
WPC is a vertically integrated manufacturer of predominately value-added
flat rolled steel products. WPC sells a broad array of value-added products,
including cold rolled steel, tin and zinc-coated steels and fabricated steel
products. WPC's products are sold to the construction industry, steel service
centers, converters, processors, and the container and appliance industries.
WPC believes that it is one of the low cost domestic flat rolled steel
producers. WPC's low cost structure is the result of: (i) the restructuring of
its work rules and staffing requirements under its five-year labor agreement
which settled a ten-month strike in 1997; (ii) the strategic balance between its
basic steel operations and its finishing and fabricating facilities; and (iii)
its efficient production of low cost, high quality metallurgical coke.
WPC believes that its 1997 labor agreement is one of the most flexible in
the industry. The new work rule package affords WPC substantially greater
flexibility in reducing its overall workforce and assigning and scheduling work,
thereby reducing costs and increasing efficiency. Furthermore, WPC has achieved
pre-strike steel production levels with approximately 850 fewer employees (a
reduction of approximately 20% in its hourly workforce).
Unimast
In March 1995, the Company acquired Unimast, a leading manufacturer of
steel framing and related accessories for commercial and residential building
construction. Unimast uses galvanized steel to manufacture steel framing
components for wall, floor and roofing systems, in addition to other roll formed
expanded metal construction accessories.
HANDY & HARMAN
WHX acquired H&H in April 1998. H&H's business groups are: (i)
manufacturing and selling of metal wire, cable and tubing products, primarily
stainless steel and specialty alloy; (ii) manufacturing and selling of precious
metals products and precision electroplated materials and molded parts; and
(iii) manufacturing and selling of other specialty products supplied to roofing,
construction, do-it-yourself, natural gas, electric, and water industries. H&H's
products are sold to industrial users in a wide range of applications which
include the electric, electronic, automotive original equipment, computer
equipment, oil and other energy related, refrigeration, construction, utility,
telecommunications and medical industries.
BUSINESS STRATEGY
WHX's business strategy is to enhance the growth and profitability of each
of its businesses and to build upon the strengths of those businesses through
product line and other strategic acquisitions. Key elements of this strategy
have been the expansion of downstream operations, reorganization of acquired
businesses and facilities expansion.
WPC continues to improve its cost structure and enhance productivity
through job eliminations (850 positions were eliminated in 1997, approximately
20% of its pre-strike hourly workforce) and capital expenditures, upgrading and
modernizing its steelmaking facilities.
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WPC will continue to expand production of value-added products, principally
through growth of fabricated products, and its emphasis on joint ventures, such
as Wheeling-Nisshin, Inc. (Wheeling-Nisshin) and Ohio Coatings Company (OCC).
H&H will continue to focus on niche markets for high margin products and
innovative technology, while seeking growth through strategic acquisitions.
H&H's business strategy is designed to limit exposure to lower margin,
capital intensive businesses while increasing focus on higher margin strategic
businesses. In the mid-nineties, H&H exited its commodity automotive OEM and
precious metal refining businesses, and with its strong brand name and customer
recognition expanded in specialty metals and materials product markets. H&H will
also continue to focus on its materials engineering expertise to expand
production of higher value-added products.
H&H has pursued an acquisition strategy designed to: (i) enhance its
offerings of higher-value added products; (ii) leverage its technological
capabilities; and (iii) expand its customer base. In September 1994, H&H
acquired Sumco, Inc., a precision electroplating company, which does
electroplating of electronic connector and connector stock for the automotive,
telecommunications, electronic and computer industries. In June 1996, H&H
acquired ele Corporation, which provides value-added reel-to-reel molding
capabilities appropriate for the semiconductor lead frame and sensor
marketplace. In February 1997 H&H completed the acquisition of Olympic
Manufacturing Group, Inc., the leading domestic manufacturer and supplier of
fasteners for the commercial roofing industry.
Unimast will continue to expand the breadth and depth of its product
offerings and the geographic markets it serves, by both internal growth and
acquisitions. In 1998, Unimast expanded its business through the acquisition of
Clinch-On, a manufacturer of steel cornerbead and trim serving the
non-residential and residential construction markets.
PRODUCTS AND PRODUCT MIX
Steel and Related Businesses -- WPC and Unimast
The table below reflects the historical product mix of WPC's and Unimast's
shipments, expressed as a percentage of tons shipped. Increases in the
percentage of higher value products have been realized during the 1990's as (i)
fabricated products operations were expanded, (ii) Wheeling-Nisshin's second
coating line increased its requirements of cold-rolled coils from WPC, and (iii)
the Company's acquisition of Unimast in March 1995. In addition, the OCC joint
venture should enable the Company to increase tin mill product shipments in 1999
up to an additional 92,000 tons compared to 1998 levels.
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HISTORICAL PRODUCT MIX
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YEAR ENDED DECEMBER 31
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1994 1995 1996(1) 1997(1) 1998
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PRODUCT CATEGORY:
Higher Value-Added Products:
Cold Rolled Products -- Trade.................... 10.5% 7.5% 7.6% 4.5% 9.9%
Cold Rolled Products --
Wheeling-Nisshin.............................. 17.3 17.9 15.6 6.2 17.2
Coated Products.................................. 21.7 20.3 18.7 9.0 14.0
Tin Mill Products................................ 7.2 6.7 7.0 2.6 6.5
Fabricated Products.............................. 11.9 14.1 16.6 31.3 14.1
Unimast(2)....................................... -- 5.2 8.4 20.7 11.2
------ ------ ------ ------ ------
Higher Value-Added Products as a percentage of
total shipments.................................. 68.6% 71.7% 73.9% 74.3% 72.9%
Hot Rolled Products................................ 31.4% 28.3% 26.1% 16.0% 26.8%
Semi-Finished...................................... -- -- -- 9.7 0.3
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Total.................................... 100.0% 100.0% 100.0% 100.0% 100.0%
====== ====== ====== ====== ======
AVERAGE NET SALES PER TON.......................... $ 498 $ 543 $ 544 $ 606 $ 524
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(1) The allocation among product categories was affected by the strike.
(2) Reclassified for comparability.
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WPC
Products produced by WPC are described below. These products are sold
directly to third party customers and Unimast, and to Wheeling-Nisshin and OCC
pursuant to long-term supply agreements.
COLD ROLLED PRODUCTS. Cold rolled coils are manufactured from hot rolled
coils by employing a variety of processing techniques, including pickling, cold
reduction, annealing and temper rolling. In recent years, WPC has increased its
cold rolled production to support increased sales to Wheeling-Nisshin, which is
labeled as a separate product category above.
COATED PRODUCTS. WPC manufactures a number of corrosion-resistant,
zinc-coated products including hot dipped galvanized and electrogalvanized
sheets for resale to trade accounts. WPC's trade sales of galvanized products
are heavily oriented to unexposed applications, principally in the appliance,
construction, service center and automotive markets. WPC sells electrogalvanized
products for application in the appliance and construction markets.
TIN MILL PRODUCTS. Tin mill products consist of backplate and tin-plate.
Backplate is a cold rolled substrate (uncoated), the thickness of which is less
than .0142 inches. While the majority of WPC's sales of these products is
concentrated in container markets, WPC also markets products for automotive
applications, such as oil filters and gaskets. WPC has phased out its tin mill
facilities and produces all of its tin coated products through OCC. OCC's $69
million tin coating mill, which commenced commercial operations in January 1997,
has a nominal annual capacity of 250,000 net tons. WPC will supply up to 230,000
tons of the substrate requirements of the joint venture subject to quality
requirements and competitive pricing.
HOT ROLLED PRODUCTS. Hot rolled coils represent the least processed of
WPC's finished goods. Hot rolled black or pickled (acid cleaned) coils are sold
to a variety of consumers such as converters/processors, steel service centers
and the appliance industries.
FABRICATED PRODUCTS. Fabricated products consist of cold rolled or coated
products further processed mainly via roll forming and sold in the construction,
highway, and agricultural products industries.
Construction Products. Construction products consist of roll-formed
sheets, which are utilized in sectors of the non-residential building market
such as commercial, institutional and manufacturing. They are classified into
three basic categories: roof deck; form deck; and composite floor deck.
Agricultural Products. Agricultural products consist of roll-formed,
corrugated sheets which are used as roofing and siding in the construction of
barns, farm machinery enclosures and light commercial buildings and certain
residential roofing applications.
Highway Products. Highway products consist of bridge form, which is
roll-formed corrugated sheets utilized as concrete support forms in the
construction of highway bridges.
Unimast
In March 1995, WHX acquired Unimast, a leading manufacturer of steel
framing and related accessories for residential and commercial building
construction with shipments of approximately 219,000 tons of steel products in
1997 and 276,000 tons in 1998. Unimast uses galvanized steel to manufacture
steel framing components for wall, floor and roofing systems, in addition to
other roll formed expanded metal construction accessories, providing WPC an
additional outlet for some portion of its steel products. Unimast has facilities
in Franklin Park, Illinois; Warren, Ohio; Morrow, Georgia; Baytown, Texas;
Boonton, New Jersey; New Brighton, Minnesota; Brooksville, Florida; Goodyear,
Arizona and East Chicago, Indiana.
In January 1998 Unimast expanded its business through the acquisition of
Clinch-On, a manufacturer of steel cornerbead and trims for both the
non-residential and residential construction markets with approximately 14,000
tons annual capacity.
Wheeling-Nisshin
WPC owns a 35.7% equity interest in Wheeling-Nisshin, which is a joint
venture between WPC and Nisshin Holding, Incorporated, a wholly-owned subsidiary
of Nisshin Steel Co., LTD., ("Nisshin"). Wheeling-Nisshin is a state-of-the-art
processing facility located in Follansbee, West Virginia which produces among
the lightest gauge galvanized steel products available in the United States.
Wheeling-Nisshin products are marketed through trading companies, and its
shipments are not consolidated into WPC's shipments.
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Wheeling-Nisshin began commercial operations in 1988 with an initial
capacity of 360,000 tons. In March 1993, Wheeling-Nisshin added a second hot
dipped galvanizing line, which increased its capacity by approximately 94%, to
over 700,000 annual tons and allows Wheeling-Nisshin to offer the lightest-gauge
galvanized sheet products manufactured in the United States for construction,
heating, ventilation and air-conditioning and after-market automotive
applications.
WPC's amended and restated supply agreement with Wheeling-Nisshin expires
in 2013. Pursuant to the amended supply agreement, WPC will provide not less
than 75% of Wheeling-Nisshin's steel substrate requirements, up to an aggregate
maximum of 9,000 tons per week subject to product quality requirements.
Shipments of cold rolled steel by WPC to Wheeling-Nisshin were approximately
66,500 tons, or 7.8% of WPC's total tons shipped in 1997 and approximately
354,300 tons, or 16.8%, in 1996. Shipments to Wheeling Nisshin in 1997 and 1996
were negatively affected by the strike. Shipments to Wheeling Nisshin in 1998
totaled approximately 428,000 tons, or 19.1%.
Ohio Coatings Company
WPC has a 50.0% equity interest in OCC, which is a joint venture between
WPC and Dong Yang, a leading South Korea-based tin plate producer. Nittetsu
Shoji America ("Nittetsu"), a U.S. based tin plate importer, holds non-voting
preferred stock in OCC. OCC completed construction of a $69 million
state-of-the-art tin coating mill in 1996 and commenced commercial operations in
January 1997. The OCC tin-coating facility is the only domestic electro-tin
plating facility constructed in the past 30 years and is positioned to become a
premier supplier of tin plate to the container and automotive industries. WPC
has phased out its existing tin coating facilities and produces all of its tin
coated products through OCC. As part of the joint venture agreement, WPC has the
right to supply up to 230,000 tons of the substrate requirements of OCC through
the year 2012, subject to quality requirements and competitive pricing. WPC will
market 100% of OCC's products, partially through Nittetsu. In 1997 and 1998 OCC
had an operating loss of $14.3 million and operating income of $ .3 million,
respectively. The 1997 results reflected OCC's start-up, inability to source
substrate during the 1997 strike and competitive market conditions for tinplate.
NON-STEEL BUSINESSES
Handy & Harman
H&H, through several subsidiaries, manufactures a wide variety of specialty
metal wire and tubing products. Small diameter precision drawn tubing fabricated
from stainless steel, nickel alloy and carbon and alloy steel is produced in
many sizes and shapes to critical specifications for use in the semiconductor,
aircraft, petrochemical, automotive, appliance, refrigeration and
instrumentation industries. Additionally, tubular product is manufactured for
the medical industry for use as implants, surgical devices and instrumentation.
Nickel alloy, galvanized and carbon steel and stainless steel wire products
redrawn from rods are produced for such diverse applications as bearings,
brushes, cable lashing, hose reinforcement, nails, knitted mesh, wire rope and
cloth, air bags and antennas for use in the aerospace, automotive, chemical,
communications, marine, medical, petrochemical, welding and other industries.
H&H's precious metals activities include the fabrication of precious metals
and their alloys into wire and rolled products, powders and grain and the
utilization of precious metals in precision electroplating. H&H's profits from
precious metal products are derived from the "value added" of processing and
fabricating and not from the purchase and resale of precious metals. In
accordance with general practice in the industry, prices to customers are a
composite of two factors; namely (1) the value of the precious metal content of
the product plus (2) an amount referred to as the "fabrication value" to cover
the cost of base metals, labor, overhead, financing and profit. Fabricated
precious metals are used in many applications including brazing, arts and
contact materials for a wide variety of industries including aerospace,
electronics, appliance, nuclear, automotive, jewelry, electrical, medical and
silversmithing.
H&H produces precision stamped, electroplated and molded components and
parts (often using gold, silver, palladium and various base metals) for use in
the semiconductor, telecommunications, automotive, electronics and computer
industries. It also participates in the injection molded medical plastics
market.
H&H, through other subsidiaries, manufactures fasteners, fastening systems,
plastic and steel fittings and connectors, and non-ferrous thermite welding
powders for the roofing, construction, do-it-yourself, natural gas, electric and
water distribution industries.
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WHX Entertainment
In October 1994, WHX Entertainment, a wholly owned subsidiary of WHX,
purchased a 50.0% interest in the operations of Wheeling-Downs Racing
Association (Wheeling-Downs) from Sportsystems Corporation for $12.5 million.
Wheeling-Downs operates a racetrack and video lottery facility located in
Wheeling, West Virginia.
CUSTOMERS
Steel and Related Businesses
WPC and Unimast market an extensive mix of products to a wide range of
manufacturers, converters and processors. The Company's 10 largest customers
(including Wheeling-Nisshin) accounted for approximately 30.6% of its net sales
in 1996, 25.9% in 1997, and 27.2% in 1998. Wheeling-Nisshin was the only
customer to account for more than 10% of net sales in 1996. Wheeling-Nisshin
accounted for 11.5% of net sales in 1996. No single customer accounted for more
than 10% of net sales in 1997 or 1998. Geographically, the majority of WPC's
customers are located within a 350-mile radius of the Ohio Valley. However, WPC
has taken advantage of its river-oriented production facilities to market via
barge into more distant locations such as the Houston, Texas and St. Louis,
Missouri areas. WPC has also acquired regional fabricated product facilities to
service an even broader geographical area. The acquisition of Unimast in March
1995 increased the Company's shipments to the construction industry and its
ability to market its products to broad geographic areas. Unimast has facilities
located in Franklin Park, Illinois; Warren, Ohio; Morrow, Georgia; Baytown,
Texas; Boonton, New Jersey; New Brighton, Minnesota; Brooksville, Florida;
Goodyear, Arizona and East Chicago, Indiana.
Shipments historically have been concentrated within seven major market
segments: construction industry, steel service centers, converters/processors,
agriculture, container, automotive, and appliances. The overall participation in
the construction and the converters/processors markets substantially exceeds the
industry average and its reliance on automotive shipments as a percentage of
total shipments is substantially less than the industry average.
PERCENT OF TOTAL NET TONS SHIPPED
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YEAR ENDED DECEMBER 31,
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MAJOR CUSTOMER CATEGORY: 1994 1995 1996(1) 1997(1) 1998
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<S> <C> <C> <C> <C> <C>
Construction.............................................. 18% 22% 28% 44% 27%
Steel Service Centers..................................... 32 27 24 26 27
Converters/Processors..................................... 28 26 23 13 29
Agriculture............................................... 5 6 7 11 5
Containers................................................ 6 6 6 2 7
Automotive................................................ 6 5 5 2 --
Appliances................................................ 3 4 4 1 2
Exports................................................... -- 1 -- -- 1
Other..................................................... 2 3 3 1 2
--- --- --- --- ---
Total........................................... 100% 100% 100% 100% 100%
=== === === === ===
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(1) The allocation among customer categories was affected by the strike.
CONSTRUCTION. The shipments to the construction industry are heavily
influenced by fabricated product sales and the sales of Unimast. WPC services
the non-residential and agricultural building and highway industries,
principally through shipments of hot dipped galvanized and painted cold rolled
products. With its acquisitions during the 1980's and early 1990's of regional
facilities, WPC has doubled its fabricated products shipments and has been able
to market its products into broad geographical areas. Unimast is a leading
manufacturer of steel framing and related accessories for residential and
commercial building construction.
STEEL SERVICE CENTERS. The shipments to steel service centers are heavily
concentrated in the areas of hot rolled and hot dipped galvanized coils. Due to
increased in-house costs to steel companies during the 1980's for processing
services such as slitting, shearing and blanking, steel service centers have
become a major factor in the distribution of hot rolled products to ultimate end
users. In addition, steel service centers have become a significant factor in
the sale of hot dipped galvanized products to a variety of small consumers such
as mechanical contractors, who desire not to be burdened with large steel
inventories.
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CONVERTERS/PROCESSORS. The growth of shipments to the
converters/processors market is principally attributable to the increase in
shipments of cold rolled products to Wheeling-Nisshin, which uses cold rolled
coils as a substrate to manufacture a variety of coated products, including hot
dipped galvanized and aluminized coils for the automotive, appliance and
construction markets. As a result of the second line expansion, WPC's shipments
to Wheeling-Nisshin increased significantly beginning in 1993. The
converters/processors industry also represents a major outlet for their hot
rolled products, which are converted into finished commodities such as pipe,
tubing and cold rolled strip.
AGRICULTURE. The shipments to the agricultural market are principally
sales of roll-formed, corrugated sheets which are used as roofing and siding in
the construction of barns, farm machinery enclosures and light commercial
buildings.
CONTAINERS. The vast majority of shipments to the container market are
concentrated in tin mill products, which are utilized extensively in the
manufacture of food, aerosol, beverage and general line cans. The container
industry has represented a stable market. The balance of shipments to this
market consists of cold rolled products for pails and drums. As a result of the
OCC joint venture, WPC phased out its existing tin mill production facilities in
1996, and has begun to sell substrate to, and to distribute products produced
by, OCC.
AUTOMOTIVE. Unlike the majority of its competitors, WPC is not heavily
dependent on shipments to the automotive industry. However, WPC seeks to
establish higher value-added niches in this market, particularly in the area of
hot dipped galvanized products for deep drawn automotive underbody parts. In
addition, WPC has been a supplier of tin mill products for automotive
applications, such as oil filters and gaskets. As a result of the strike, WPC
was unable to secure automotive contracts for 1998. WPC will compete for
automotive contracts in future periods.
APPLIANCE. The shipments to the appliance market are concentrated in hot
dipped galvanized, electrogalvanized and hot rolled coils. These products are
furnished directly to appliance manufacturers as well as to blanking, drawing
and stamping companies that supply OEMs. WPC has concentrated on niche product
applications primarily used in washer/dryer, refrigerator/freezer and range
appliances. WPC expects to be in a favorable position to compete for contracts
to supply appliance manufacturers in 1999 and future periods.
Handy & Harman
H&H is diversified across both industrial markets and customers. H&H sells
to the electronics, telecommunications, semi-conductor, computer, aerospace,
home appliance OEM, automotive, construction, utility, medical, silversmith, and
general manufacturing industries. In 1998, no customer accounted for more than
3% of H&H's sales.
RAW MATERIALS
Steel and Related Businesses
WPC has a 12.5% ownership interest in Empire Iron Mining Partnership
("Empire") which operates a mine located in Palmer, Michigan. WPC is obligated
to purchase approximately 12.5% or 1.0 million gross tons per year (at current
production levels) of the mine's annual ore output. Interest in related ore
reserves as of December 31, 1998, is estimated to be 19.8 million gross tons.
WPC generally consumes approximately 2.4 million gross tons of iron ore pellets
in its blast furnaces. WPC obtains approximately half of its iron ore from spot
and medium-term purchase agreements at prevailing world market prices. It has
commitments for the majority of its blast furnace iron ore pellet needs through
2000 from world class suppliers.
In 1993 WPC sold the operating assets of its coal company to an unrelated
third party. WPC also entered into a long-term supply agreement with such third
party to provide WPC with a substantial portion of WPC's metallurgical coal
requirements at competitive prices. WPC's coking operations require a
substantial amount of metallurgical coal.
WPC currently produces coke in excess of its requirements and typically
consumes generally all of the resultant by-product coke oven gas. In 1998,
approximately 1.7 million tons of coking coal were consumed in the production of
blast furnace coke by WPC. WPC may continue to sell its excess coke and coke
oven by-products to third-party trade customers.
WPC's operations require material amounts of other raw materials, including
limestone, oxygen, natural gas and electricity. These raw materials are readily
available and are purchased on the open market. WPC is presently dependent on
external steel scrap for approximately 8% of its steel melt. The cost of these
materials has been
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susceptible in the past to price fluctuations, but worldwide competition in the
steel industry has frequently limited the ability of steel producers to raise
finished product prices to recover higher material costs. Certain of WPC's raw
material supply contracts provide for price adjustments in the event of
increased commodity or energy prices.
Unimast's raw material consists primarily of galvanized steel coils, which
are readily available on the open market. Unimast purchases its steel
requirements from major domestic steel producers throughout the country,
including WPC. The price for steel coils tends to fluctuate due to changes in
the domestic and international marketplaces. Unimast has not experienced any
problems in obtaining the necessary quantities of steel from its suppliers,
which totaled over 270,000 tons for the year ended December 31, 1998.
Handy & Harman
The raw materials used by H&H in its precious metal operations consist
principally of silver, gold, copper, cadmium, zinc, nickel, tin, and the
platinum group metals in various forms. Silver, gold and palladium constitute
the major portion of the value of the raw materials involved. The prices of
silver, gold, and palladium are subject to fluctuations and are expected to
continue to be affected by world market conditions. Nonetheless, H&H has not
experienced any problems obtaining necessary quantities of raw materials and, in
the normal course of business, receives precious metals from suppliers and
customers. These metals are returnable in fabricated or commercial bar form
under agreed upon terms. Since precious metals are fungible, H&H does not
physically segregate supplier and customer metals from its own inventories.
Therefore, to the extent that supplier or customer metals are used by H&H, the
amount of inventory which H&H must own is reduced. All precious metal raw
materials are readily available from several sources. It is H&H's operating
policy to maintain its precious metal inventory levels under the last in, first
out (LIFO) method of accounting. Precious metals are purchased at the same
prices and quantities as selling commitments to customers. From time-to-time,
management reviews the appropriate inventory levels and may elect to make
adjustments.
The raw materials used by H&H in its non precious metal operations consist
principally of stainless, galvanized, and carbon steel, nickel alloys, a variety
of high performance alloys, and various plastic compositions. H&H purchases all
such raw materials at open market prices from domestic and foreign suppliers.
H&H has not experienced any problems obtaining necessary quantities of raw
materials. Prices and availability, particularly of raw materials purchased from
foreign suppliers, will be affected by world market conditions and government
policies.
BACKLOG
WPC's order backlog was 365,622 net tons at December 31, 1998, compared to
368,025 net tons at December 31, 1997. The Company believes that the December
31, 1998 order backlog will be shipped by June 30, 1999.
CAPITAL INVESTMENTS
The Company believes that it must continuously strive to improve
productivity, product quality and control manufacturing costs in order to remain
competitive. Accordingly, the Company is committed to continuing to make
necessary capital investments with the objective of reducing manufacturing costs
per ton, improving the quality of steel produced and broadening the array of
products offered to the Company's served markets. The Company's capital
expenditures (including capitalized interest) for 1998 were approximately $48.3
million, including $9.5 million on environmental projects. Capital expenditures
in 1997 and 1998 were lower than in recent years due to the strike. From 1994 to
1998, such expenditures aggregated approximately $285.8 million. This level of
capital expenditures was needed to maintain productive capacity, improve
productivity and upgrade selected facilities to meet competitive requirements
and maintain compliance with environmental laws and regulations. The capital
expenditure program has included improvements to WPC's infrastructure, blast
furnaces, steel-making facilities, 80-inch hot strip mill and finishing
operations, and has resulted in improved shape, gauge, surface and physical
characteristics for its products. Continuous and substantial capital and
maintenance expenditures will be required to maintain operating facilities,
modernize finishing facilities to remain competitive and to comply with
environmental control requirements. The Company anticipates funding its capital
expenditures in 1999 from cash on hand and funds generated by operations, sale
of receivables under the WPC Receivables Facility and funds available under the
revolving credit facilities at WPSC, H&H and Unimast. During the 1997 strike,
the Company had delayed substantially all capital expenditures at the
strike-affected plants. The Company anticipates that capital expenditures will
approximate depreciation on average, over the next few years.
7
<PAGE> 9
ENERGY REQUIREMENTS
Many of the Company's major facilities that use natural gas have been
equipped to use alternative fuels. The Company continually monitors its
operations regarding potential equipment conversion and fuel substitution to
reduce energy costs.
EMPLOYMENT
Total active employment of the Company at December 31, 1998 totaled 7,363
employees, of which 3,661 were represented by the USWA, and 558 by other unions.
The remainder consisted of 1,806 salaried employees and 1,338 non-union
operating employees. At December 31, 1998, WPC had 4,238 employees, H&H had
2,463 employees and Unimast had 662 employees.
On August 12, 1997, WPC and the USWA entered into a new five-year labor
agreement.
COMPETITION
Steel and Related Businesses
The steel industry is cyclical in nature and has been marked historically
by overcapacity, resulting in intense competition.
WPC faces increasing competitive pressures from other domestic integrated
producers, minimills and processors. Processors compete with WPC in the areas of
slitting, cold rolling and coating. Minimills are generally smaller volume steel
producers that use ferrous scrap metals as their basic raw material. Compared to
integrated producers, minimills, which rely on less capital intensive steel
production methods, have certain advantages. Since minimills typically are not
unionized, they have more flexible work rules that have resulted in lower
employment costs per net ton shipped. Since 1989, significant flat rolled
minimill capacity has been constructed and these minimills now compete with
integrated producers in product areas that traditionally have not faced
significant competition from minimills. In addition, there is significant
additional flat rolled minimill capacity under construction or announced with
completion dates sometime in 1999. Near term, these minimills and processors are
expected to compete with WPC primarily in the commodity flat rolled steel
market. In the long-term, such minimills and processors may also compete with
WPC in producing value-added products. In addition, the increased competition in
commodity product markets influence certain integrated producers to increase
product offerings to compete with WPC's custom products.
As the single largest steel consuming country in the western world, the
United States has long been a favorite market of steel producers in Europe and
Japan. In addition, steel producers from Korea, Taiwan, and Brazil, and
non-market economies such as Russia and China, have also recognized the United
States as a target market.
Total annual steel consumption in the United States has increased from 88
million to slightly over 117 million tons since 1991. A number of steel
substitutes, including plastics, aluminum, composites and glass, have reduced
the growth of domestic steel consumption.
Steel imports of flat rolled products as a percentage of domestic apparent
consumption, excluding semi-finished steel, have been approximately 19% in 1996,
20% in 1997 and 27% in 1998. Imports surged in 1998 due to severe economic
conditions in Southeast Asia, Latin America, Japan and Russia, among others.
World steel demand, world export prices, U.S. dollar exchange rates and the
international competitiveness of the domestic steel industry have all been
factors in these import levels.
Unimast is one of the leading manufacturers of steel construction building
products for the commercial and residential marketplace. While there are many
companies who compete directly with Unimast, there are few manufacturers who
carry a comparable variety of products. Unimast competes on a national basis and
is increasing its presence in the West with its new manufacturing facility in
Goodyear, Arizona. Competitive factors most affecting Unimast include service,
price and quality, with price usually the leading consideration.
Handy & Harman
H&H is one of the leading fabricators of precious metal products and
precision electroplating. Although there are no companies in the precious metals
field whose operations exactly parallel those of H&H in every area, there are a
number of competitors in each of the classes of precious metals products. Many
of these competitors also carry on activities in other product lines in which
H&H is not involved. There are many companies, domestic and foreign, which
manufacture specialty wire and tubing products, and other specialty products of
the type manufactured by
8
<PAGE> 10
H&H. Competition is based on quality, service, price and new product
introduction, each of which is of equal importance.
ITEM 2. PROPERTIES
STEEL AND RELATED BUSINESSES
WPC And Unimast
WPC has one raw steel producing plant and various other finishing and
fabricating facilities. The Steubenville complex is an integrated steel
producing facility located at Steubenville and Mingo Junction, Ohio and
Follansbee, West Virginia. The Steubenville complex includes a sinter plant,
coke oven batteries that produce all coke requirements, two operating blast
furnaces, two basic oxygen furnaces, a two-strand continuous slab caster with an
annual slab production capacity of approximately 2.4 million tons, an 80-inch
hot strip mill and pickling and coil finishing facilities. The Ohio and West
Virginia locations, which are separated by the Ohio River, are connected by a
railroad bridge owned by WPC. A pipeline is maintained for the transfer of coke
oven gas for use as fuel from the coke plant to several other portions of the
Steubenville complex. The Steubenville complex primarily produces hot rolled
products, which are either sold to third parties or shipped to other of the
Company's facilities for further processing into value-added products.
The following table lists the other principal plants of WPC and the annual
capacity of the major products produced at each facility:
OTHER MAJOR FACILITIES
<TABLE>
<CAPTION>
LOCATION AND OPERATIONS CAPACITY TONS/YEAR MAJOR PRODUCTS
- ----------------------- ------------------ ---------------------------------------
<S> <C> <C>
Allenport, Pennsylvania:
Continuous pickler, tandem mill, temper
mill and annealing........................ 950,000 Cold rolled sheets
Beech Bottom, West Virginia:
Paint line................................ 120,000 Painted steel in coil form
Canfield, Ohio:
Electrogalvanizing line, paint line,
ribbon and oscillating rewind slitters.... 65,000 Electrolytic galvanized sheet and strip
Martins Ferry, Ohio:
Temper mill, zinc coating lines........... 750,000 Hot dipped galvanized sheets and coils
Yorkville, Ohio:
Continuous pickler, tandem mill, temper
mills and annealing lines................. 660,000 Black plate and cold rolled sheets
</TABLE>
All of the above facilities currently owned by WPC are regularly maintained
in good operating condition. However, continuous and substantial capital and
maintenance expenditures are required to maintain the operating facilities, to
modernize finishing facilities in order to remain competitive and to meet
environmental control requirements.
WPC has fabricated products facilities at Fort Payne, Alabama; Houston,
Texas; Lenexa, Kansas; Louisville, Kentucky; Minneapolis, Minnesota; Warren,
Ohio; Gary, Indiana; Wilmington, North Carolina and Klamath Falls, Medford and
Brooks, Oregon.
WPC maintains regional sales offices in Atlanta, Chicago, Detroit,
Philadelphia and Pittsburgh.
Unimast has facilities located at Franklin Park, Illinois; Warren, Ohio;
Morrow, Georgia; Baytown, Texas; Boonton, New Jersey; New Brighton, Minnesota;
Brooksville, Florida; Goodyear, Arizona and East Chicago, Indiana.
Handy & Harman
H&H, acquired in April 1998, has 26 active operating plants in the United
States, Canada, England, Denmark and Singapore (50% owned) with a total area of
approximately 1,887,000 square feet, including warehouse, office and laboratory
space, but not including the plant used by the Singapore operation. H&H also
owns or leases sales, service and warehouse facilities at two other locations in
the United States, which, with H&H's general office, have a total area of
approximately 63,000 square feet and owns ten non-operating or discontinued
locations with a total area of approximately 498,000 square feet. H&H considers
its manufacturing plants and services facilities to be well
9
<PAGE> 11
maintained and efficiently equipped, and therefore suitable for the work being
done. The productive capacity and extent of utilization of its facilities are
dependent in some cases on general business conditions and in other cases on the
seasonality of the utilization of its products. Capacity can be expanded readily
to meet additional demands. Manufacturing facilities of H&H are located in: Fort
Smith, Arkansas; Fontana, California; Toronto, Canada; Fairfield, Connecticut;
Camden, Delaware; Kolding, Denmark; Stevenage, Retford, and Liversedge, England;
Carmel, Indiana; Evansville, Indiana; Indianapolis, Indiana; Cockeysville,
Maryland; Agawam, Westfield and North Attleboro, Massachusetts; Middlesex and
Willingboro, New Jersey; Canastota and Oriskany, New York; East Providence,
Rhode Island; Cudahy, Wisconsin; and Singapore (50% owned). All plants are owned
in fee except for the Canastota, Carmel, Fort Smith, Stevenage, Middlesex,
Retford and Westfield plants, which are leased.
ITEM 3. LEGAL PROCEEDINGS
ENVIRONMENTAL MATTERS
WPC
WPC, as are other industrial manufacturers, is subject to increasingly
stringent standards relating to the protection of the environment. In order to
facilitate compliance with these environmental standards, WPC has incurred
capital expenditures for environmental control projects aggregating $6.8
million, $12.4 million and $9.5 million for 1996, 1997 and 1998, respectively.
WPC anticipates spending approximately $30.8 million in the aggregate on major
environmental compliance projects through the year 2002, estimated to be spent
as follows: $7.5 million in 1999, $7.3 million in 2000, $7.2 million in 2001,
and $8.8 million in 2002. Due to the possibility of unanticipated factual or
regulatory developments, the amount and timing of future expenditures may vary
substantially from such estimates.
WPC has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act
("Superfund") or similar state statutes at several waste sites. WPC is subject
to joint and several liability imposed by Superfund on potentially responsible
parties. Due to the technical and regulatory complexity of remedial activities
and the difficulties attendant to identifying potentially responsible parties
and allocating or determining liability among them, WPC is unable to reasonably
estimate the ultimate cost of compliance with Superfund laws. WPC believes,
based upon information currently available, that its liability for clean up and
remediation costs in connection with the Buckeye Reclamation will be between
$2.5 and $3.0 million. At five other sites (MIDC Glassport, Tex-Tin, Breslube
Penn, Four County Landfill and Beazer) WPC estimates the costs to approximate
$500,000. WPC is currently funding its share of remediation costs.
The Clean Air Act Amendments of 1990 (the "Clean Air Act") directly affect
the operations of many of WPC's facilities, including coke ovens. WPC is
presently in compliance with the provisions of the Act. However, under the Clean
Air Act, coke ovens generally will be required to comply with progressively more
stringent standards which will result in an increase in environmental capital
expenditures and costs for environmental compliance. The forecasted
environmental expenditures include amounts which will be spent on projects
relating to compliance with these standards.
In March 1993 the EPA notified WPC of Clean Air Act violations, alleging
particulate matter and hydrogen sulfide emissions in excess of allowable
concentrations, at WPC's Follansbee Coke Plant. The parties have entered into a
consent decree settling the civil penalties related to this matter for $700,000
and WPC completed payment of all civil penalties in January 1997.
In an action brought in 1985 in the U.S. District Court for the Northern
District of West Virginia, the EPA claimed violations of the Solid Waste
Disposal Act at a surface impoundment area at the Follansbee facility. WPC and
the EPA entered into a consent decree in October 1989 whereby soil and
groundwater testing and monitoring procedures are required. The surface
impoundment has been removed and a final closure plan has been submitted to the
USEPA. WPC is waiting for approval from the USEPA to implement the plan. Until
the USEPA responds to WPC, the full extent and cost of remediation cannot be
ascertained.
In June of 1995 the USEPA informally requested corrective action affecting
other areas of the Follansbee facility. The USEPA sought to require WPC to
perform a site investigation of the Follansbee plant. WPC actively contested the
USEPA's jurisdiction to require a site investigation, but subsequently entered
into a final administrative order with the USEPA to conduct a Resource
Conservation and Recovery Act ("RCRA") facility investigation.
By letter dated March 15, 1994 the Ohio Attorney General advised WPC of its
intention to file suit on behalf of the Ohio EPA for alleged hazardous waste
violations at WPC's Steubenville, Mingo Junction, Martins Ferry and
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<PAGE> 12
Yorkville facilities. In subsequent correspondence the State of Ohio demanded a
civil penalty of approximately $300,000. Negotiations for settlement of past
violations is on-going.
In January 1998 the Ohio Attorney General notified WPC of a draft consent
order and initial civil penalties in the amount of $1 million for various air
violations at it's Steubenville and Mingo Junction facilities occurring from
1992 through 1996. WPC is engaged in discussions with the Ohio Environmental
Enforcement Section to resolve these issues.
WPC is currently operating in substantial compliance with three consent
decrees (two with the EPA and one with the Pennsylvania Department of
Environmental Resources) with respect to wastewater discharges at Allenport,
Pennsylvania and Mingo Junction, Steubenville, and Yorkville, Ohio. All of the
foregoing consent decrees are nearing expiration. A petition to terminate the
Allenport consent decree was filed in 1998.
WPC is aware of potential environmental liabilities resulting from
operations, including leaking underground and aboveground storage tanks, and the
disposal and storage of residuals on its property. Each of these situations is
being assessed and remediated in accordance with regulatory requirements.
Non-current accrued environmental liabilities totaled $10.6 million at
December 31, 1997 and $12.7 million at December 31, 1998. As new information
becomes available, including information provided by third parties, and changing
laws and regulation, the liabilities are reviewed and the accruals adjusted
quarterly. Management believes, based on its best estimate, that WPC has
adequately provided for its present environmental obligations.
Based upon information currently available, including WPC's prior capital
expenditures, anticipated capital expenditures, consent agreements negotiated
with Federal and state agencies and information available to WPC on pending
judicial and administrative proceedings, WPC does not expect its environmental
compliance costs, including the incurrence of additional fines and penalties, if
any, relating to the operation of its facilities, to have a material adverse
effect on the financial condition or results of operations of WPC. However, as
further information comes into WPC's possession, it will continue to reassess
such evaluations.
Handy & Harman
In connection with the Montvale, New Jersey, facility (which was closed in
1984), formerly operated by Handy & Harman Electronic Materials Corporation
("HHEM"), a subsidiary of H&H, a civil action lawsuit was filed in April 1993 by
the Borough of Park Ridge in the Superior Court of New Jersey, Law Division,
Bergen County, against HHEM, the Company, the prior owner of the facility and
other defendants asserting that a chemical used at the facility in Montvale, New
Jersey, an adjoining municipality, had migrated and entered a drinking water
supply of Park Ridge. This action seeks recovery of the alleged cost of
treatment and remediation of water wells of the Borough of Park Ridge as a
result of alleged contamination by the defendants.
The H&H defendants denied responsibility for the alleged contamination of
the Park Ridge wells and asserted that if any such contamination existed as a
result of operation of the Montvale facility, damages arising therefrom are the
responsibility of the owner or operator thereof prior to the purchase of the
facility by HHEM from Plessey Incorporated (Plessey). The H&H defendants
asserted substantial cross-claims against Plessey, GEC-Marconi Materials Corp.
and a vendor of the chemical involved. H&H also filed a separate action, since
consolidated with the above Park Ridge action, against Twin Cities Fire
Insurance Company and other carriers, claiming coverage under various liability
insurance policies and seeking indemnification and defense for all of Park
Ridge's claims.
H&H has settled its claims against its co-defendant, Plessey, Inc., and its
claims against Twin City. As a result of those settlements, the Company believes
that the resolution of the Park Ridge lawsuit, either by settlement or
judgement, will not have a materially adverse effect on the financial position
of the Company.
SEC ENFORCEMENT ACTION
On June 25, 1998, the Securities and Exchange Commission ("SEC") instituted
an administrative proceeding against the Company alleging that it had violated
certain SEC rules in connection with the tender offer for Dynamics Corporation
of America ("DCA") commenced on March 31, 1997 through the Company's wholly-
owned subsidiary, SB Acquisition Corp. (the "Offer"). The Company previously
disclosed that the SEC intended to institute this proceeding. Specifically, the
Order Instituting Proceedings (the "Order") alleges that, in its initial form
the Offer violated the "All Holders Rule," Rule 14d-10(a)(1) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), based on the
Company's inclusion of a "record holder condition" in the Offer. No shareholder
had tendered any shares at the time the condition was removed. The Order further
alleges that the Company violated Rules 14d-4(c) and 14d-6(d) under the Exchange
Act upon expiration of the Offer, by allegedly waiving material conditions to
the Offer without prior notice to shareholders and purchasing the approximately
11
<PAGE> 13
10.6% of DCA's outstanding shares tendered pursuant to the offer. The SEC does
not claim that the Offer was intended to or in fact defrauded any investor.
The Order institutes proceedings to determine whether the SEC should enter
an order requiring the Company (i) to cease and desist from committing or
causing any future violation of the rules alleged to have been violated and (ii)
to pay approximately $1.3 million in disgorgement of profits. The Company has
filed an answer denying any violations and seeking dismissal of the proceeding.
Although there can be no assurance that an adverse decision will not be
rendered, the Company intends to vigorously defend against the SEC's charges.
GENERAL LITIGATION
On October 27, 1998, WPC filed a complaint in Belmont County, Ohio against
ten trading companies, two Japanese mills and three Russian mills alleging that
it had been irreparably harmed as a result of sales of hot-rolled steel by the
defendants at prices below the cost of production. WPC asked the Court for
injunctive relief to prohibit such sales. On November 6, 1998, defendants
removed the case from Belmont County to the US District Court for the Southern
District of Ohio. WPC filed a motion in the US District Court asking the Court
to remand the case to Belmont County. On November 19, 1998, the US District
Court denied WPC's motion to remand the case to Belmont County. However, the
Court permitted WPC to amend its complaint to allege violations of federal law.
On November 20, 1998, WPC filed an amended complaint in the US District Court
against nine trading companies. WPC added a claim under the 1916 Antidumping Act
to its existing state law claims. The amended complaint seeks treble damages and
injunctive relief.
The defendants filed a motion to dismiss WPC's amended complaint and a
motion to strike WPC's request for injunctive relief under the 1916 Act. The
Court granted defendants' motion to dismiss WPC's state law causes of action,
but denied defendants' motion to dismiss WPC's claims under the 1916 Antidumping
Act. The Court has not yet issued its decision on defendants' motion to strike
WPC's request for injunctive relief. The case has been set for trial on August
16, 1999. WPC has reached out-of-court settlements with three of the nine steel
trading companies named in its 1916 Act lawsuit. While terms of the settlements
are confidential, the settling defendants agreed to certain restrictions on the
importation of foreign steel in the future and agreed to purchase certain steel
products from WPC.
The Company is a party to various litigation matters including general
liability claims covered by insurance. In the opinion of management, such claims
are not expected to have a material adverse effect on the financial condition or
results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
NOT APPLICABLE
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<PAGE> 14
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED SECURITY HOLDER
MATTERS
The number of shares of Common Stock issued and outstanding as of March 18,
1999 was 16,976,968, including 296,962 shares of Redeemable Common Stock. In
1997 and 1998, the Company purchased 5,537,552 shares and 1,780,307 shares,
respectively of Common Stock in open market purchases. The repurchased shares
have been retired. In the first two months of 1999 the Company purchased
approximately 900,000 Common Shares in the open market.
The prices set forth in the following table represent the high and low
sales prices for the Company's Common Stock:
<TABLE>
<CAPTION>
COMMON STOCK
------------------
HIGH LOW
------- -------
<S> <C> <C>
1997
First Quarter............................................... $ 9.250 $ 6.750
Second Quarter.............................................. 8.250 5.250
Third Quarter............................................... 15.250 7.625
Fourth Quarter.............................................. 14.250 10.375
1998
First Quarter............................................... 17.375 11.000
Second Quarter.............................................. 16.938 12.313
Third Quarter............................................... 13.938 10.000
Fourth Quarter.............................................. 12.875 9.500
</TABLE>
As of March 1, 1999, there were approximately 11,902 holders of record of
WHX's Common Stock.
The Company intends to retain any future earnings for working capital needs
and to finance capital improvements and presently does not intend to pay cash
dividends on its Common Stock for the foreseeable future.
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<PAGE> 15
ITEM 6 SELECTED FINANCIAL DATA
Five-Year Statistical
(Thousands of Dollars)
<TABLE>
<CAPTION>
1994 1995 1996* 1997* 1998
---------- ---------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
PROFIT AND LOSS:
Net sales............................. $1,193,878 $1,364,614 $1,232,695 $ 642,096 $1,645,498
Cost of products sold (excluding
depreciation and amortization and
profit sharing)..................... 979,277 1,147,899 1,096,228 720,722 1,376,431
Depreciation and amortization......... 61,514 67,700 68,956 49,445 96,870
Profit sharing........................ 9,257 6,718 -- -- --
Selling, administrative and general
expense............................. 64,540 66,531 70,971 68,190 120,981
Special charge........................ -- -- -- 92,701 --
---------- ---------- ---------- --------- ----------
Operating income (loss)............... 79,290 75,766 (3,460) (288,962) 51,216
Interest expense on debt.............. 22,581 22,830 25,963 29,047 78,096
Other income.......................... 17,925 47,139 25,974 50,668 89,696
B & LE settlement..................... 36,091 -- -- -- --
---------- ---------- ---------- --------- ----------
Income (loss) before taxes............ 110,725 100,075 (3,449) (267,341) 62,816
Tax provision (benefit)............... 24,360 19,014 (4,107) (93,569) 23,386
---------- ---------- ---------- --------- ----------
Income (loss) before extraordinary
items............................... 86,365 81,061 658 (173,772) 39,430
Extraordinary items -- net of tax..... (9,984) (3,043) -- (25,990) 2,241
---------- ---------- ---------- --------- ----------
Net income (loss)..................... 76,381 78,018 658 (199,762) 41,671
Preferred stock dividends............. 13,177 22,875 22,313 20,657 20,608
---------- ---------- ---------- --------- ----------
Net income (loss) available to common
stock............................... $ 63,204 $ 55,143 $ (21,655) $(220,419) $ 21,063
========== ========== ========== ========= ==========
BASIC INCOME (LOSS) PER SHARE:
Income (loss) before extraordinary
items............................... $ 2.72 $ 2.25 $ (.83) $ (8.83) $ 1.04
Extraordinary items -- net of tax..... (.37) (.12) -- (1.18) .12
---------- ---------- ---------- --------- ----------
Net income (loss) per share........... $ 2.35 $ 2.13 $ (.83) $ (10.01) $ 1.16
Average number of common shares
outstanding (in thousands).......... 26,957 25,850 26,176 22,028 18,198
FINANCIAL POSITION:
Cash, cash equivalents and short term
investments, net of short term
borrowings.......................... $ 401,606 $ 439,493 $ 412,359 $ 305,934 $ 230,584
Working capital....................... 524,051 541,045 491,956 329,372 408,878
Property, plant and
equipment -- net.................... 768,284 793,319 755,412 738,660 819,077
Plant additions and improvements...... 82,020 83,282 35,436 36,779 48,250
Total assets.......................... 1,729,908 1,796,467 1,718,779 2,061,920 2,712,084
Long-term debt........................ 289,500 285,676 268,198 350,453 893,356
Stockholders' equity.................. 692,254 768,405 714,437 453,393 446,512
NUMBER OF STOCKHOLDERS OF RECORD:
Common................................ 8,729 13,408 12,697 12,273 11,915
Series A Convertible Preferred........ 27 28 42 42 31
Series B Convertible Preferred........ 22 48 62 79 69
EMPLOYMENT
Employment costs...................... $ 328,584 $ 343,416 $ 321,347 $ 204,004 $ 394,701
Average number of employees........... 5,481 5,996 5,706 4,420 7,470
</TABLE>
- ---------------
WHX CORPORATION
* The financial results of the Company for the fourth quarter of 1996 and all of
1997 were adversely affected by the strike.
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<PAGE> 16
NOTES TO FIVE-YEAR STATISTICAL SUMMARY
The Company adopted Statement of Financial Accounting Standard No. 112,
"Accounting for Postemployment Benefits" ("SFAS 112") as of January 1, 1994.
SFAS 112 establishes accounting standards for employers who provide benefits to
former or inactive employees after employment but before retirement. Those
benefits include, among others, disability, severance and workers' compensation.
The Company recorded a charge of $12.2 million ($10.0 million net of tax) in the
1994 first quarter as a result of the cumulative effect on prior years of
adoption of the change in accounting method.
The Company and its subsidiaries were reorganized into a new holding
company structure on July 26, 1994. The transactions were accounted for as a
reorganization of entities under common control. On the merger date, WHX had the
same consolidated net worth as WPC and its subsidiaries prior to the
reorganization.
In 1995 the Company recorded an extraordinary charge of $3.0 million, net
of taxes, to reflect the coal retiree medical benefits for additional retirees
assigned to the Company by the Social Security Administration and the effect of
recording the liability at its net present value.
In 1996 the Company experienced a work stoppage which began October 1, 1996
and continued through August 12, 1997 at eight of its plants in Ohio,
Pennsylvania and West Virginia. No steel products were produced or shipped from
these facilities during the strike. These facilities account for approximately
80% of the tons shipped by the Company on an annual basis.
In 1997 the Company recorded a special charge of $92.7 million related to a
new labor agreement which ended the ten-month strike. The special charge
included $66.7 million for enhanced retirement benefits, $15.5 million for
signing and retention bonuses, $3.8 million for special assistance and other
employee benefits payments and $6.7 million for a grant of 1.0 million stock
options to WPN Corp.
In 1997 the Company also recorded an extraordinary charge of $26.0 million,
net of tax, related to premium and interest charges required to defease its then
outstanding 9 3/8% Senior Unsecured Notes of $24.3 million and coal miner
retiree medical benefits of $1.7 million.
During 1998 the Company purchased and retired $48.0 million aggregate
principal amount of 10 1/2% Senior Notes in the open market resulting in
extraordinary income of $2.2 million, net of tax.
In April 1998 the Company acquired H&H. The transaction had a total value
of $651.4 million, including the assumption of approximately $229.6 million in
debt.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
Overview
In August 1997 WPC and the USWA entered into a new five-year labor
agreement which settled a ten-month strike. The strike directly affected
facilities accounting for approximately 80% of WPC's steel shipments. The strike
materially affected the financial performance of WPC in the fourth quarter of
1996 and for all of 1997, and will be the primary reason for differences in year
to year comparisons.
All of WPC's production facilities resumed operations as of September 30,
1997. Raw steel production achieved 90% of capacity in the fourth quarter of
1997. By June 30, 1998, WPC was producing at its pre-strike production levels
and shipping at its historical mix of products. The new labor agreement provides
for a restructuring of work rules and manning requirements and a reduction in
the expense associated with retiree healthcare costs. The improved work rules
allowed WPC to eliminate 850 hourly jobs (approximately 20% of the work force)
and materially reduced its labor costs. Partially offsetting these savings are
hourly wage increases and the costs of a defined benefit pension plan, which
include a retirement incentive.
On March 31, 1998, the Company announced that it had entered into a
definitive purchase agreement for the sale of $350.0 million principal amount of
10 1/2% Senior Notes due 2005 in a Rule 144A Private placement to qualified
institutional buyers. The closing on the private placement of 10 1/2% Senior
Notes occurred April 7, 1998. The net proceeds of $340.4 million from the
offering were used to finance a portion of the acquisition of H&H and related
transaction expenses. The 10 1/2% Senior Notes were exchanged for identical
notes which were issued pursuant to an exchange offer registered under the
Securities Act of 1933, as amended (the "Securities Act").
On April 13, 1998 the Company completed the acquisition of H&H and merged
it with a wholly-owned subsidiary of the Company. The transaction has a total
value of approximately $651.4 million, including the
15
<PAGE> 17
assumption of approximately $229.6 million in debt. The Company financed the
transaction through cash on hand and the private placement of its 10 1/2% Senior
Notes.
In May, 1998 WHX completed the merger of its pension plan with the pension
plan of H&H. Under the terms of the merged WHX Pension Plan, there are a series
of benefit structures, that essentially continue the various pension plans for
employees of the WPC and H&H plans as they existed before the merger.
The Company continues to pursue strategic alternatives to maximize the
value of its portfolio of businesses. Some of these alternatives have included,
and will continue to include selective acquisitions, divestitures and sales of
certain assets. The Company has provided, and may from time to time in the
future, provide information to interested parties regarding portions of its
businesses for such purposes.
1998 Compared to 1997
Net sales for 1998 increased to $1.6 billion from $642.1 million in 1997.
Sales increased primarily due to (i) the return to pre-strike levels of sales
for WPC's operations of $1.1 billion compared to 1997 net sales of $489.7
million, which earlier period reflects the effect of the strike by the United
Steel Workers of America, (ii) the acquisition of H&H $350.3 million and (iii)
Unimast increased sales of $205.4 million in 1998 compared to $156.7 million in
1997.
Cost of products sold for 1998 increased to $1.4 billion from $720.7
million in 1997. The increase in Cost of products sold reflects the increased
volume of raw steel production at WPC's operations, which were idled throughout
much of 1997 due to the strike, and the inclusion of H&H operations beginning in
April 1998. Costs include $4.5 million related principally to physical inventory
adjustments. Also, WPC experienced lower pension expense in 1998 as a result of
the merger of the H&H and WPC pension plans.
Depreciation and amortization expense increased to $96.9 million in 1998
from $49.4 million in 1997. Increased depreciation is principally due to the
higher levels of raw steel production depreciation methods, as well as $9.6
million of depreciation at H&H. Raw steel production increased by 269%.
Amortization increased $6.1 million, principally reflecting the goodwill
acquired in the H&H acquisition.
Selling, administrative and general expense increased $52.8 million to
$121.0 million in 1998 from $68.2 million in 1997. The increase is primarily due
to the acquisition of H&H in the second quarter, as well as increased activity
at WPC after the strike.
In 1997 the Company recorded a special charge of $92.7 million related to
the new labor agreement. The special charge included $66.7 million for enhanced
retirement benefits, $15.5 million for signing and retention bonuses, special
assistance payments and other employee benefits totaling $3.8 million and $6.7
million for a grant of 1.0 million stock options to WPN Corp.
Interest expense increased to $78.1 million in 1998 from $29.0 million in
1997 reflecting the $350.0 million of 10 1/2% Senior Notes issued in March 1998
for the purchase of H&H as well as $237.1 million of H&H outstanding
indebtedness.
Other income increased to $89.7 million in 1998 from $50.7 million in 1997.
The increase reflects a $36.6 million increase in interest and realized and
unrealized investment gains and losses on short-term investments. Equity income
increased from a loss of $1.6 million in 1997 to income of $5.7 million in 1998
due to start-up losses in the OCC joint venture during 1997. Partially
offsetting the increases are additional securitization fees in 1998 due to a
higher level of accounts receivable securitization.
The tax provision for 1998 and benefit for 1997 were $23.4 million and
$93.6 million, respectively, and is based on pre-tax income. The Company pays
taxes under the alternative minimum tax system and records the effect on
deferred tax assets and liabilities caused by temporary tax adjustments.
Income before extraordinary charges in 1998 totaled $39.4 million, or $1.04
per share of Common Stock. The 1998 extraordinary gain of $3.4 million ($2.2
million net of tax) reflects the discount on the purchase of $48.0 million
aggregate principal amount of 10 1/2% Senior Notes in the open market. The 1997
extraordinary charge of $40.0 million ($26.0 million net of tax) reflects the
premium and interest of $37.4 million on the legal defeasance of long term debt,
and $2.6 million for coal miner retiree medical expense attributable to the
allocation of additional retirees to the Company by the Social Security
Administration.
Net income in 1998 totaled $41.7 million, or income of $1.16 per share of
Common Stock after deduction of preferred stock dividends. Net loss in 1997
totaled $199.8 million, or a loss of $10.01 per share of Common Stock after
deduction of preferred stock dividends.
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<PAGE> 18
1997 Compared to 1996
Net sales for 1997 decreased to $642.1 million from $1,232.7 million in
1996. Shipments of steel products decreased to 1.1 million tons in 1997 from 2.3
million tons in 1996. The decrease in sales and tons shipped is primarily
attributable to the work stoppage at WPC's eight plants located in Ohio,
Pennsylvania and West Virginia. Production and shipment of steel products at
these plants ceased on October 1, 1996 and the strike continued to August 12,
1997. Average net sales per ton increased to $606 in 1997 from $544 per ton in
1996 because higher value added products continued to be shipped during the
strike from other locations. Unimast net sales for 1997 totaled $156.7 million
on shipments of 219,000 tons compared to 1996 net sales of $133.5 million on
shipments of 191,000 tons.
Cost of goods sold increased to $680 per ton shipped in 1997 from $484 in
1996. This increase reflects the effect of high fixed cost and low capacity
utilization and higher levels of external steel purchases due to the strike,
higher costs for natural gas and a higher value-added product mix. In addition,
costs were adversely affected by a door rehabilitation program at WPC's number 8
coke battery. The operating rate for the fourth quarter was 90.0%, but for the
year of 1997 declined to 27.6%. The operating rate for the nine months prior to
the work stoppage was 98.9%, but declined to 74.0% for the full year of 1996.
Raw steel production is 100% continuous cast.
Depreciation expense decreased to $49.4 million in 1997 from $69.0 million
in 1996. Decreased depreciation is due to lower levels of raw steel production
during the strike and its effect on units of production depreciation method. Raw
steel production decreased by 62.8%.
Selling, administrative and general expense decreased 3.9% to $68.2 million
in 1997 from $71.0 million in 1996. The decrease is due to the reduced level of
operations.
In 1997 the Company recorded a special charge of $92.7 million related to
the new labor agreement. The special charge included $66.7 million for enhanced
retirement benefits, $15.5 million for signing and retention bonuses, special
assistance payments and other employee benefits totaling $3.8 million and $6.7
million for a grant of 1 million stock options to WPN Corp.
Interest expense increased to $29.0 million in 1997 from $26.0 million in
1996 due primarily to higher levels of borrowings under the WPC Revolving Credit
Facility.
Other income increased to $50.7 million in 1997 from $26.0 million in 1996.
The increase reflects a $32.4 million increase in interest and investment
income, including unrealized income of $17.4 million under mark to market rules.
Equity income decreased from $9.5 million in 1996 to a loss of $1.6 million in
1997 due to start-up losses in the OCC joint venture.
The tax benefits for 1997 and 1996 were $93.6 million and $4.1 million,
respectively, before recording a tax benefit related to extraordinary charges in
1997.
Loss before extraordinary charges in 1997 totaled $173.8 million, or $8.83
per share of Common Stock. The 1997 extraordinary charge of $40.0 million ($26.0
million net of tax) reflects the premium and interest of $37.4 million on the
legal defeasance of long term debt, and $2.6 million for coal miner retiree
medical expense attributable to the allocation of additional retirees to the
Company by the Social Security Administration.
Net loss in 1997 totaled $199.8 million, or a loss of $10.01 per share of
Common Stock after deduction of preferred stock dividends. Net income in 1996
totaled $.7 million, or a loss of $.83 per share of Common Stock after deduction
of preferred stock dividends.
LIQUIDITY AND CAPITAL RESOURCES
Net cash flow provided by operating activities for 1998 totaled $221.2
million. Short term trading investments and related short term borrowings are
reported as cash flow from operating activities. Working capital accounts
(excluding cash, short term investments, short term borrowings and current
maturities of long-term debt) increased by $137.2 million, including amounts
acquired from H&H. Accounts receivable increased $78.6 million (excluding a
$26.0 million sale of trade receivables under the Receivables Facility) due to
increased sales reflecting resolution of the labor dispute and the acquisition
of H&H. Inventories valued principally by the LIFO method for financial
reporting purposes, totaled $467.1 million at December 31, 1998, an increase of
$182.4 million from the prior year end reflecting the acquisition of H&H. Trade
payables increased $8.5 million due to higher operating levels and the
acquisition of H&H. Net cash flow used in investing activities for 1998 totaled
$446.6 million including capital expenditures of $48.3 million. Net cash flow
from financing activities totaled $240.4 million including repayments under
WPC's Revolving Credit Facility of $22.8 million, $299.2 million of additional
long term debt, offset by $20.2 million utilized for Common Stock repurchases in
the open market.
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<PAGE> 19
For the year ended December 31, 1998, the Company spent $48.3 million
(including capitalized interest) on capital improvements, including $9.5 million
on environmental control projects. Capital expenditures were lower than in
recent years due to the strike. Additionally, the Company invested $7.2 million
in 1997 in its OCC joint venture.
On July 30, 1998 H&H entered into a $300 million Senior Secured Credit
facility (the "Facilities") with Citibank USA Inc. as agent. The Facilities are
comprised of (i) a $100 million 6-year Revolving Credit Facility, (ii) a $25
million 6-year Delayed Draw Term Loan Facility, (iii) a $50 million 6-year Term
Loan A Facility, and (iv) a $125 million 8-year Term Loan B Facility. Interest
under the Facilities is calculated at a rate determined either using (i) the
Citibank prime rate or (ii) LIBOR, plus the Applicable Margin in effect from
time to time. Applicable Margin means a percentage per annum determined by
reference to the total leverage ratio for H&H. The rates in effect until
December 31, 1998 are (a) in the case of the Term A Facility, the Delayed Draw
Facility and the Revolving Credit Facility, calculated at LIBOR + 1.75% and (b)
in the case of the Term B facility, calculated at LIBOR + 2.50%. Borrowings
under the Facilities are secured by the pledge of 100% of the capital stock of
all H&H's active U.S. subsidiaries and 65% of the stock of H&H's non-U.S.
subsidiaries. In addition, H&H provided a perfected first priority lien on and
security interest in substantially all the assets of H&H and its subsidiaries.
The Facilities have certain financial covenants restricting indebtedness, liens
and distributions. In addition, the Facilities required H&H to procure an
interest rate hedge agreement covering a notional amount of not less than $125
million for a period of no less than three years. H&H has entered into a
cancelable interest-rate swap to convert $125 million of its variable-rate debt
to a fixed rate with Citibank, N.A. New York. The fixed rate is 4.53 percent,
effective January 4, 1999, with a termination date of January 5, 2004; provided
however Citibank may designate July 5, 2000 as the termination date. The
Facilities replaced H&H's $125.0 million Senior Notes due 2004 and its then
outstanding unsecured revolving credit facility.
On April 7, 1998, the Company closed a definitive purchase agreement for
the sale of $350.0 million principal amount of 10 1/2% Senior Notes due 2005 in
a Rule 144A Private Placement to qualified institutional buyers. The net
proceeds of $340.4 million from the offering were used to finance a portion of
the acquisition of H&H and related transaction expenses. The 10 1/2% Senior
Notes were exchanged for identical notes which were issued pursuant to an
exchange offer registered under the Securities Act. During the third quarter of
1998, the Company purchased $48.0 million aggregate principal amount of 10 1/2%
Senior Notes in the open market for $43.2 million.
In November 1997 WPC issued $275.0 million principal amount of 9 1/4%
Senior Unsecured Notes (the "9 1/4% Senior Notes") to qualified institutional
buyers pursuant to Rule 144A under the Securities Act. The 9 1/4% Senior Notes
were exchanged for identical notes which were issued pursuant to an exchange
offer registered under the Securities Act.
In November 1997 WPC also entered into a Term Loan Agreement with DLJ
Capital Funding, Inc., as syndication agent, pursuant to which the Company
borrowed $75.0 million. The Term Loan Agreement matures on November 15, 2006.
Amounts outstanding under the Term Loan Agreement bear interest at either (i)
the Alternate Base Rate (as defined therein) plus 2.25% or (ii) the LIBO Rate
(as defined therein) plus 3.25%, determined at the Company's option. WPC's
obligations under the Term Loan Agreement are guaranteed by WPC's outstanding
present and its future operating subsidiaries.
The proceeds from the 9 1/4% Senior Notes and the Term Loan Agreement were
used to defease $266.2 million of 9 3/8% Senior Secured Notes due 2003 and to
pay down borrowings under the Revolving Credit Facility.
On December 28, 1995, WPSC entered into a new Revolving Credit Facility
(Revolving Credit Facility) with Citibank, N.A. as agent. The Revolving Credit
Facility, as amended, provides for borrowing for general corporate purposes of
up to $150.0 million. The Revolving Credit Facility expires May 3, 1999 and is
currently being renegotiated. Interest is calculated at a Citibank prime rate
plus 1.0% and/or a Eurodollar rate plus 2.25%. Borrowings under the Revolving
Credit Facility are secured primarily by 100% of WPSC's eligible inventory and
requires that WPSC maintain a specified level of tangible net worth. The
Revolving Credit Facility has certain financial covenants restricting
indebtedness, liens and distributions. Borrowings under the Revolving Credit
Facility at December 31, 1998 totaled $67.0 million.
In August 1994 the Company entered into an agreement to sell, up to $75.0
million on a revolving basis, an undivided percentage ownership in a designated
pool of trade receivables (the "Receivables Facility"). In July 1995, WPC
amended such Receivables Facility to sell an additional $20.0 million on similar
terms and conditions. The Receivables Facility expires in August 1999 and is
currently being renegotiated. Accounts receivable at December 31, 1998, exclude
$95.0 million representing accounts receivable sold with recourse limited to the
extent of uncollectible balances. Fees paid by the Company under this
Receivables Facility were based upon variable rates
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<PAGE> 20
that range from 5.5438% to 8.50%. Based on the Company's collection history, the
Company believes that credit risk associated with the above arrangement is
immaterial.
In May, 1998 WHX completed the merger of its pension plan with the pension
plan of its wholly owned H&H subsidiary. Under the terms of the merged WHX
Pension Plan, there are a series of benefit structures, which essentially
continue the various pension plans for employees of the WPC and H&H plans as
they existed before the merger.
At the time of the merger of the pension plans, the assets in the Handy &
Harman pension plans exceeded the plans' liabilities by approximately $155.0
million. At that time, the liabilities of the WHX pension plan exceeded their
assets by approximately $150.0 million. The pension plan merger thus eliminated
both the underfunding in the WHX pension plan and the Company's balance sheet
liability at the merger date, and materially reduced the Company's net periodic
pension expense in future periods. Furthermore, based on the Company's current
actuarial assumptions, the merged pension plan is substantially funded and will
therefore eliminate approximately $135 million of cash funding obligations of
the Company over the next four years.
In 1998 the Company repurchased 1.8 million shares of Common Stock for
$20.2 million. The Company may, from time to time, continue to purchase
additional shares of Common Stock and Preferred Stock.
Short-term liquidity is dependent, in large part, on cash on hand,
investments, general economic conditions and their effect on steel demand and
prices. Long-term liquidity is dependent upon the Company's ability to sustain
profitable operations and control costs during periods of low demand or pricing
in order to sustain positive cash flow. The Company satisfies its working
capital requirements through cash on hand, investments, the Receivables
Facility, borrowing availability under the Revolving Credit Facilities and funds
generated from operations. The Company believes that such sources will provide
the Company for the next twelve months with the funds required to satisfy
working capital and capital expenditure requirements. External factors, such as
worldwide steel production and demand and currency exchange rates could
materially affect the Company's results of operations. During 1998 the Company
had minimal activity with respect to futures contracts, and the impact of such
activity was not material to the Company's financial condition and results of
operations.
As of December 31, 1998, the Company had cash and short-term investments,
net of related investment borrowings, of $230.6 million. During 1998, the
Company purchased $48.0 million aggregate principal amount of its 10 1/2% Senior
Notes due 2005 in the open market.
The Company announced on October 5, 1998 that it had purchased
approximately 2.2 million shares of common stock, a 9.9 percent stake, in Global
Industrial Technologies Inc. ("Global") for $14.9 million. Global is a
Dallas-based industrial tool and special equipment products company. On December
17, 1998, the Company commenced a tender offer for any and all outstanding
shares of Global that it does not already own at $10.50 per share. The purpose
of the offer is for the Company to acquire control of, and ultimately the entire
equity interest in, Global. As of March 15, 1999, each of the Rights Condition,
the Supermajority Condition and the Business Combination Condition (each as
defined in the Offer to Purchase) has not been satisfied. The offer is currently
scheduled to expire on April 15, 1999, unless further extended.
WHX's company wide Year 2000 Project is proceeding on schedule. The project
addresses all aspects of computing in the Company including mainframe systems,
external data interfaces to customers, suppliers, banks and government,
mainframe controlling software, voice and data systems, internal networks and
personal computers, plant process control systems, building controls, and in
addition surveying major suppliers and customers to assure their readiness.
Mainframe business systems were approximately 97% Year 2000 compliant at
December 31, 1998 and expected to be 100% compliant by March 31, 1999; external
data interfaces, mainframe software, voice and data systems and internal
networks and personal computers are anticipated to be Year 2000 compliant by the
end of the first quarter of 1999; process control systems are anticipated to be
compliant by the end of the second quarter of 1999. Building controls are Year
2000 compliant at this time. Supplier and customer surveys are approximately 50%
complete at this time and completion is expected by the end of the second
quarter of 1999.
The total costs associated with the required modifications to become Year
2000 compliant is not expected to be material to the Company's financial
condition or results of operations. The estimated total cost of the Year 2000
Project is $3.0 million. The total amount expended on the project through
December 31, 1998 is $2.5 million. Funds are being provided to the project
through departmental expenses budgeted for at the beginning of this project.
Failure to correct a Year 2000 problem could result in an interruption of
certain normal business activities or operations. The Year 2000 project is
expected to eliminate any issues that would cause such an interruption. The
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<PAGE> 21
Company believes that the implementation of the Year 2000 project changes will
minimize any interruptions. The Company is currently in the process of
developing contingency plans regarding component failure of any Year 2000
non-compliant segment of the business.
Continuous and substantial capital and maintenance expenditures will be
required to maintain and, where necessary, upgrade operating facilities to
remain competitive, and to comply with environmental control requirements. The
Clean Air Act Amendment of 1990 is expected to increase the Company's costs
related to environmental compliance; however, such an increase in cost is not
reasonably estimable, but is not anticipated to have a material adverse effect
on the consolidated financial condition of the Company. It is anticipated that
necessary capital expenditures including required environmental expenditures in
future years will approximate depreciation expense and represent a material use
of operating funds. The Company anticipates funding its capital expenditures in
1998 from cash on hand and funds generated from operations.
Non-current accrued environmental liabilities totaled $10.6 million at
December 31, 1997 and $7.8 million at December 31, 1998. These accruals were
initially determined by the Company in January 1991, based on all then available
information. As new information becomes available, including information
provided by third parties, and changing laws and regulation, the liabilities are
reviewed and the accruals adjusted quarterly. Management believes, based on its
best estimate, that the Company has adequately provided for remediation costs
that might be incurred or penalties that might be imposed under present
environmental laws and regulations.
When used in the Management's Discussion and Analysis, the words
"anticipate", "estimate" and similar expressions are intended to identify
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act, which are intended to be covered by the
safe harbors created thereby. Investors are cautioned that all forward-looking
statements involve risks and uncertainty, including without limitation, the
ability of the Company to develop market and sell its products, the effects of
competition and pricing and Company and industry shipment levels, and the effect
of Year 2000 on the Company, its customers and suppliers. Although the Company
believes that the assumptions underlying the forward-looking statements are
reasonable, any of the assumptions could be inaccurate, and therefore, there can
be no assurance that the forward-looking statements included herein will prove
to be accurate.
NEW ACCOUNTING STANDARDS
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use" ("SOP 98-1"). SOP 98-1
addresses costs incurred in connection with the implementation of internal-use
software, and specifies the circumstances under which such costs should be
capitalized or expensed. The Company will be required to adopt SOP 98-1 in the
first quarter of 1999. At this time, management does not anticipate the adoption
of SOP 98-1 will have a material impact on the Company's results of operations
or financial position.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" (SFAS 133). This pronouncement requires all derivative
instruments to be reported at fair value on the balance sheet; depending on the
nature of the derivative instrument, changes in fair value will be recognized
either in net income or as an element of comprehensive income. SFAS 133 is
effective for fiscal years beginning after June 15, 1999. The Company has not
engaged in significant activity with respect to derivative instruments or
hedging activities in the past. Management of the Company has not yet determined
the impact, if any, of the adoption of SFAS 133 on the Company's financial
position or results of operations.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
Commodity Price Risk and Related Risks
In the normal course of business, the Company is exposed to market risk or
price fluctuations related to the purchase of natural gas, precious metals and
steel products. To a lesser extent, the Company is exposed to the risk of price
fluctuations on coal, coke, natural gas liquids, electricity and certain
nonferrous metals used as raw materials. The Company is also exposed to the
effects of price fluctuations on the value of its commodity inventories,
specifically, H&H's precious metals inventories.
The Company's market risk strategy has generally been to obtain competitive
prices for its products and services and allow operating results to reflect
market price movements dictated by supply and demand.
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FOREIGN CURRENCY EXCHANGE RATE RISK
The Company is subject to the risk of price fluctuations related to
anticipated revenues and operating costs, firm commitments for capital
expenditures and existing assets or liabilities denominated in currencies other
than U.S. dollars. The Company has not generally used derivative instruments to
manage this risk.
EQUITY PRICE RISK
The Company is subject to equity price risk resulting from its investments
in certain marketable equity securities of unrelated parties; the Company
accounts for its investment in these securities in accordance with Statement of
Financial Accounting Standards No. 115, Accounting for Certain Investments in
Debt and Equity Securities ("SFAS 115").
At December 31, 1998, the Company held $30.3 million in equity securities
classified as "trading" in accordance with SFAS 115. Each quarter the Company
adjusts the carrying amount of its trading securities to fair market value, with
any resulting adjustment being charged or credited to other income. At year end
1998, a hypothetical 10% decrease in the value of the equity trading securities
would have resulted in a $3.0 million unfavorable impact on pretax income. Such
a decrease in value might also reduce the future cash flows generated from the
ultimate liquidation of the investment in trading securities.
At December 31, 1998, the Company held $23.2 million in equity securities
classified as "available for sale" in accordance with SFAS 115. Each quarter the
Company adjusts the carrying amount of its available for sale securities to fair
market value, with any resulting adjustment being charged or credited, net of
the related income tax effect, to other comprehensive income. The balance of
unrealized gain at December 31, 1998, associated with the Company's available
for sale securities totaled $5.4 million, net of tax. At year-end 1998, a
hypothetical 10% decrease in the value of the equity available for sale
securities would have resulted in a $1.5 million unfavorable impact, net of tax,
on other comprehensive income. Such a decrease in value might also reduce the
future cash flows generated from the ultimate liquidation of the investment in
trading securities.
See Note F to the consolidated financial statements for additional
information concerning the Company's short-term investments.
INTEREST RATE RISK
The Company is subject to the effects of interest rate fluctuations on
certain of its financial instruments. A sensitivity analysis of the projected
incremental effect of a hypothetical 10% change in 1998 year-end interest rates
on the fair value of WHX's financial instruments is provided in the following
table:
<TABLE>
<CAPTION>
FAIR
CARRYING MARKET INCREMENTAL(1)
VALUE VALUE INCR./(DECR.)
-------- -------- --------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Financial assets:
Investments in fixed income securities.................... $640,125 $640,125 $(22,404)
Financial liabilities:
Fixed-rate long-term debt (including amounts due within
one year).............................................. $576,071 $533,590 $ 29,237
</TABLE>
- ---------------
(1) Reflects a 10% increase in interest rates for financial assets and a 10%
decrease in interest rates for financial liabilities.
Fair value of cash and cash equivalents, receivables, short-term
borrowings, accounts payable, accrued interest and variable-rate long-term debt
approximate their carrying values and are relatively insensitive to changes in
interest rates due to the short-term maturity of the instruments or the variable
nature of underlying interest rates. Accordingly, these items have been excluded
from the above table.
At December 31, 1998, the Company's investment portfolio included U.S.
government fixed income securities totaling $640.1 million. The fair value of
these instruments will increase or decrease as a result of changes in market
interest rates. The Company accounts for these investments as "trading
securities" as defined by SFAS 115. Accordingly, each quarter the Company
adjusts the balance of its portfolio to fair market value, with any resulting
adjustment being charged or credited to income as an unrealized loss or gain and
included in other income. Realized gains and losses resulting from the
disposition of such investments are recorded as income in the period during
which such disposition took place. During 1998, the Company recognized realized
and unrealized gains totaling $59.4 million in connection with its fixed income
securities investment portfolio. The Company provides no assurance that these
gains are sustainable going forward. The Company's exposure to increases in
interest rates that might result in a corresponding decrease in the fair value
of its fixed income securities investment portfolio could have an unfavorable
effect on the Company's results of operations and cash flows. For additional
information, see Note F to the consolidated financial statements.
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<PAGE> 23
The Company attempts to maintain a reasonable balance between fixed- and
floating-rate debt in an attempt to keep financing costs as low as possible. At
December 31, 1998, a majority of the Company's portfolio of long-term debt
consisted of fixed-rate instruments. Accordingly, the fair value of such
instruments may be relatively sensitive to effects of interest rate
fluctuations. In addition, the fair value of such instruments is also affected
by investors' assessments of the risks associated with industries in which the
Company operates as well as the Company's overall creditworthiness and ability
to satisfy such obligations upon their maturity. However, the Company's
sensitivity to interest rate declines and other market risks that might result
in a corresponding increase in the fair value of its fixed-rate debt portfolio
would only have an unfavorable effect on the Company's results of operations and
cash flows to the extent that the Company elected to repurchase or retire all or
a portion of its fixed-rate debt portfolio at an amount in excess of the
corresponding carrying value.
The Company has entered into an interest rate swap for certain of its
variable-rate debt. The swap agreement covers a notional amount of $125 million
and converts $125 million of its variable-rate debt to fixed rate with Citibank,
N.A. New York. The fixed rate is 4.53%, effective January 4, 1999, with a
termination date of January 5, 2004; however, Citibank may designate July 5,
2000, as the termination date.
See Note I to the consolidated financial statements for additional
information concerning the Company's long-term debt arrangements.
SAFE HARBOR
The Company's quantitative and qualitative disclosures about market risk
include forward-looking statements with respect to management's opinion about
the risks associated with the Company's financial instruments. These statements
are based on certain assumptions with respect to market prices, interest rates
and other industry-specific risk factors. To the extent these assumptions prove
to be inaccurate, future outcomes may differ materially from those discussed
above.
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<PAGE> 24
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of WHX Corporation
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, of cash flows and of changes in
stockholders' equity present fairly, in all material respects, the financial
position of WHX Corporation and its subsidiaries (the "Company") at December 31,
1998 and 1997, and the results of their operations and their cash flows for each
of the three years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
February 18, 1999
23
<PAGE> 25
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CONSOLIDATED STATEMENT OF OPERATIONS (IN THOUSANDS EXCEPT PER SHARE)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1996 1997 1998
---------- --------- ----------
<S> <C> <C> <C>
REVENUES:
Net sales................................................... $1,232,695 $ 642,096 $1,645,498
COST AND EXPENSES:
Cost of products sold, excluding depreciation............. 1,096,228 720,722 1,376,431
Depreciation and amortization............................. 68,956 49,445 96,870
Selling, administrative and general expense............... 70,971 68,190 120,981
Special charge............................................ -- 92,701 --
---------- --------- ----------
1,236,155 931,058 1,594,282
---------- --------- ----------
Operating income (loss)..................................... (3,460) (288,962) 51,216
Interest expense on debt.................................... 25,963 29,047 78,096
Other income................................................ 25,974 50,668 89,696
---------- --------- ----------
Income (loss) before taxes and extraordinary items.......... (3,449) (267,341) 62,816
Tax provision (benefit)..................................... (4,107) (93,569) 23,386
---------- --------- ----------
Income (loss) before extraordinary items.................... 658 (173,772) 39,430
Extraordinary items -- net of tax........................... -- (25,990) 2,241
---------- --------- ----------
Net income (loss)........................................... 658 (199,762) 41,671
Dividend requirement for preferred stock.................... 22,313 20,657 20,608
---------- --------- ----------
Net income (loss) available to common stock................. $ (21,655) $(220,419) $ 21,063
========== ========= ==========
BASIC INCOME (LOSS) PER SHARE OF COMMON STOCK
Income (loss) before extraordinary items.................... $ (.83) $ (8.83) $ 1.04
Extraordinary items -- net of tax........................... -- (1.18) .12
---------- --------- ----------
Net income (loss) per share....................... $ (.83) $ (10.01) $ 1.16
========== ========= ==========
INCOME (LOSS) PER SHARE OF COMMON STOCK-ASSUMING DILUTION
Income (loss) before extraordinary items.................... $ (.83) $ (8.83) $ .99
Extraordinary items -- net of tax........................... -- (1.18) .12
---------- --------- ----------
Net income (loss) per share -- assuming
dilution........................................ $ (.83) $ (10.01) $ 1.11
========== ========= ==========
</TABLE>
- ---------------
See Notes to Consolidated Financial Statements
WHX Corporation
24
<PAGE> 26
CONSOLIDATED BALANCE SHEET (IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1997* 1998
---------- ----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 1,002 $ 16,004
Short term investments.................................... 581,550 702,082
Trade receivables, less allowances for doubtful accounts
of $1,108 and $2,366................................... 44,993 97,552
Inventories............................................... 284,757 467,130
Prepaid expenses and deferred charges..................... 26,581 11,136
---------- ----------
Total current assets.............................. 938,883 1,293,904
Investment in associated companies.......................... 80,409 84,978
Property, plant and equipment, at cost less accumulated
depreciation and amortization............................. 738,660 819,077
Intangibles, net of amortization............................ -- 288,216
Deferred income taxes....................................... 188,483 110,935
Intangible asset -- pensions................................ 76,714 50,449
Deferred charges and other assets........................... 38,771 64,525
---------- ----------
$2,061,920 $2,712,084
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Trade payables............................................ $ 123,872 $ 132,412
Short term debt........................................... 366,418 559,501
Payroll and employee benefits............................. 56,212 69,845
Federal, state and local taxes............................ 12,059 12,516
Deferred income taxes -- current.......................... 32,196 69,551
Interest and other........................................ 18,288 40,589
Long-term debt due in one year............................ 466 612
---------- ----------
Total current liabilities......................... 609,511 885,026
Long-term debt.............................................. 350,453 893,356
Pension liability........................................... 166,652 5,952
Other employee benefit liabilities.......................... 427,124 423,225
Other liabilities........................................... 49,979 54,383
---------- ----------
1,603,719 2,261,942
---------- ----------
Redeemable common stock -- 360 shares and 298 shares........ 4,808 3,630
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock -- $.10 par value; authorized 10,000 shares;
issued and outstanding: 5,883 shares (liquidation
preference of $50 per share).............................. 589 589
Common stock $.01 par value; authorized 60,000 shares;
issued and outstanding: 19,074 and 17,545 shares.......... 193 175
Accumulated other comprehensive income...................... 15,754 5,472
Additional paid-in capital.................................. 602,657 582,795
Treasury stock-205 shares and 0 shares...................... (2,218) --
Accumulated earnings (deficit).............................. (163,582) (142,519)
---------- ----------
453,393 446,512
---------- ----------
$2,061,920 $2,712,084
========== ==========
</TABLE>
- ---------------
* Reclassified
See Notes to Consolidated Financial Statements
WHX Corporation
25
<PAGE> 27
CONSOLIDATED STATEMENT OF CASH FLOWS (IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------
1996 1997 1998
-------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)........................................... $ 658 $(199,762) $ 41,671
Items not affecting cash from operating activities:
Depreciation and amortization............................. 69,287 49,776 96,870
Other postretirement benefits............................. 3,505 2,322 (8,409)
Coal retirees' medical benefits, net of tax............... -- 1,700 --
Premium on early debt retirement, net of tax.............. -- 24,290 (2,241)
Income taxes.............................................. (6,572) (94,029) 19,575
(Gain) loss on asset dispositions......................... 1,541 2,335 (8,998)
Special charge, net of current portion.................... -- 69,137 --
Pension expense........................................... -- 9,327 9,236
Equity loss (income) in affiliated companies.............. (9,496) 1,644 (5,699)
Minority interest in net income........................... -- -- 921
Decrease (increase) in working capital elements, net of
effect of acquisitions
Trade receivables......................................... 50,290 (43,188) (7,487)
Trade receivables sold.................................... (22,000) 24,000 26,000
Inventories............................................... 70,469 (69,355) (4,821)
Short term investments-trading............................ (60,125) (70,239) (142,069)
Investment account borrowings............................. 68,841 206,649 212,012
Other current assets...................................... 4,248 (12,639) 38,383
Other current liabilities................................. (70,467) 69,411 (38,661)
Other items -- net.......................................... 4,629 15,705 (5,087)
-------- --------- ---------
Net cash provided by (used in) operating activities......... 104,808 (12,916) 221,196
-------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Plant additions and improvements............................ (35,436) (36,779) (48,250)
Short term investments -- available for sale................ 7,920 (26,290) 6,740
Handy & Harman acquisition, net of cash acquired............ -- (13,222) (402,632)
Other investments........................................... (17,240) (7,150) (8,335)
Proceeds from sales of assets............................... 2,785 1,217 835
Dividends from affiliated companies......................... 2,500 2,500 5,000
-------- --------- ---------
Net cash used in investing activities....................... (39,471) (79,724) (446,642)
-------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Long-term debt proceeds, net of issuance cost............... 400 340,455 561,749
Long-term debt retirement................................... (15,246) (268,766) (267,321)
(Premium)discount on early debt retirement.................. -- (32,600) 4,779
Letter of credit collateralization.......................... 384 16,984 1,520
Short-term borrowings (payments)............................ 1,382 89,546 (18,929)
Proceeds from warrants exercised............................ 5,170 -- --
Common stock purchases...................................... (27,556) (55,604) (20,228)
Preferred stock purchases................................... (15,002) (9,839) --
Preferred stock dividends................................... (22,313) (20,657) (20,608)
Redemption of equity issues................................. (542) (897) 300
Dividends on minority interest in consolidated
subsidiaries.............................................. -- -- (814)
-------- --------- ---------
Net cash provided by (used in) financing activities......... (73,323) 58,622 240,448
-------- --------- ---------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS............ (7,986) (34,018) 15,002
Cash and cash equivalents at beginning of year.............. 43,006 35,020 1,002
-------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF YEAR.................... $ 35,020 $ 1,002 $ 16,004
======== ========= =========
</TABLE>
- ---------------
See Notes to Consolidated Financial Statements
WHX Corporation
26
<PAGE> 28
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DOLLARS AND SHARES IN
THOUSANDS)
<TABLE>
<CAPTION>
ACCUMULATED
OTHER ACCUMULATED CAPITAL IN
COMMON PREFERRED TREASURY COMPREHENSIVE COMPREHENSIVE EARNINGS EXCESS OF
STOCK STOCK STOCK INCOME INCOME (DEFICIT) PAR VALUE
------ --------- -------- ------------- ------------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance January 1, 1996................ $256 $650 $(22,594) $ 735 $ 78,492 $710,471
Net Income............................. -- -- -- 658 658 --
Other comprehensive income, net of tax
Reclassification adjustment for gains
included in net income............. (735)
Foreign currency translation
adjustments........................ --
--------
Other comprehensive income............. (735) (735)
--------
Comprehensive income................... (77)
========
EIP shares sold (5 shares)............. -- -- -- -- 75
Stock options exercised (124 shares)... 1 -- -- -- 947
Warrants exercised (1,477 shares)...... 15 -- -- -- 9,377
401k contribution (94 shares).......... 1 -- -- -- 960
Purchase of treasury stock (2,940
shares).............................. (19) -- (27,537) -- --
Retirement of treasury stock (4,808
shares).............................. (9) -- 48,749 -- (48,741)
Retirement of preferred stock (363
shares).............................. -- (36) -- -- (14,966)
Preferred dividends.................... -- -- -- (22,313) --
---- ---- -------- -------- --------- --------
Balance December 31, 1996.............. 245 614 (1,382) -- 56,837 658,123
Net loss............................... -- -- -- (199,762) (199,762) --
Other comprehensive income, net of tax
Unrealized gains arising during
period............................. 15,754
Foreign currency translation
adjustments........................ --
--------
Other comprehensive income........... 15,754 15,754
--------
Comprehensive income................... (184,008)
========
EIP shares sold (4 shares)............. -- -- -- -- 67
Stock options exercised (1,735
shares).............................. 2 -- -- -- 1,388
WPN stock option....................... -- -- -- -- 6,678
401k contribution (107 shares)......... 1 -- -- -- 927
Purchase of treasury stock (5,537
shares).............................. -- -- (55,602) -- --
Retirement of treasury stock (5,489
shares............................... (55) -- 54,766 -- (54,712)
Retirement of preferred stock (254
shares).............................. -- (25) -- -- (9,814)
Preferred dividends.................... -- -- -- (20,657) --
---- ---- -------- -------- --------- --------
Balance December 31, 1997.............. 193 589 (2,218) 15,754 (163,582) 602,657
Net income............................. -- -- -- 41,671 41,671 --
Other comprehensive income, net of tax
Unrealized gains arising during
period............................. 6,200
Reclassification adjustment for gains
included in net income............. (16,565)
Foreign currency translation
adjustments........................ 83
--------
Other comprehensive income........... (10,282) (10,282)
--------
Comprehensive income................... 31,389
========
EIP shares sold (9 shares)............. -- -- -- -- 137
Stock options exercised (161 shares)... 1 -- -- -- 1,339
401k contribution (89 shares).......... 1 -- -- -- 1,088
Purchase of treasury stock (1,780
shares).............................. -- -- (20,228) -- (22,426)
Retirement of treasury stock (1,985
shares).............................. (20) -- 22,446 -- --
Preferred dividends.................... -- -- -- (20,608) --
---- ---- -------- -------- --------- --------
Balance December 31, 1998.............. $175 $589 $ 0 $ 5,472 $(142,519) $582,795
==== ==== ======== ======== ========= ========
</TABLE>
- ---------------
See Notes to Consolidated Financial Statements
WHX Corporation
27
<PAGE> 29
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
ACCOUNTING POLICIES
The accounting policies presented below have been followed in preparing the
accompanying consolidated financial statements.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of all
subsidiary companies. All significant intercompany accounts and transactions are
eliminated in consolidation. The Company uses the equity method of accounting
for investments in unconsolidated companies owned 20% or more.
BUSINESS SEGMENTS
The Company is a holding company that has been structured to acquire and
operate a diverse group of businesses on a decentralized basis, with a corporate
staff providing strategic direction and support. The Company's primary business
currently is Wheeling-Pittsburgh Corporation (WPC), a vertically integrated
manufacturer of value-added flat rolled steel products. The Company's other
principal businesses include Handy & Harman (H&H), a diversified industrial
manufacturing company whose business units encompass (a) manufacturing and
selling of metal wire, cable and tubing products primarily stainless steel and
specialty alloys; (b) manufacturing and selling of precious metals products and
precision electroplated material and molded parts; and (c) manufacturing and
selling of other specialty products supplied to roofing, construction,
do-it-yourself, natural gas, electric and water industries; and Unimast,
Incorporated (Unimast), a leading manufacturer of steel framing and other
products for commercial and residential construction. See Segment disclosures in
Note R.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include cash on hand and on deposit and highly
liquid debt instruments with original maturities of three months or less.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The recorded amount of cash and cash equivalents approximates fair value
because of the short maturity of those instruments. Short term investments are
recorded at fair market value based on trading in the public market. Redeemable
common stock is recorded at the redemption amount which is considered to
approximate fair value. See Note I for a description of fair value of debt
instruments.
INVENTORIES
Inventories are stated at cost which is lower than market. Cost is
determined by the last-in first-out ("LIFO") method for substantially all
inventories. H&H's non-precious metals inventories are stated at the lower of
cost (principally average) or market. For precious metals inventories no
segregation among raw materials, work in process and finished goods is
practicable. In 1998 and 1997, approximately 75% and 93%, respectively, of
inventories are valued using the LIFO method.
PROPERTY, PLANT AND EQUIPMENT
Depreciation is computed on the straight line and the modified units of
production methods for financial statement purposes and accelerated methods for
income tax purposes. The modified units of production method adjusts the
straight line method based on an activity factor for operating assets. Adjusted
annual depreciation is not less than 60% nor more than 110% of straight line
depreciation. Accumulated depreciation after adjustment is not less than 75% nor
more than 110% of straight line depreciation. Interest cost is capitalized for
qualifying assets during the assets' acquisition period. Capitalized interest
cost is amortized over the life of the asset. Depreciation on H&H and Unimast
property, plant and equipment is provided principally on the straight-line
method over the estimated useful lives of the assets.
28
<PAGE> 30
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Maintenance and repairs are charged to income. Renewals and betterments
made through replacements are capitalized. Profit or loss on property
dispositions is credited or charged to income.
INTANGIBLES AND AMORTIZATION
The excess of purchase price over net assets acquired in business
combinations is being amortized on the straight-line method over 40 years.
Purchased patents are stated at cost, which is amortized over the respective
remaining lives of the patents. The Company uses estimated future undiscounted
cash flows when evaluating the recoverability of the unamortized balance of the
excess of purchase price over net assets acquired in a business combination. The
assessment of the recoverability of goodwill will be impacted if estimated
future operating cash flows are not achieved.
PENSIONS AND OTHER POSTRETIREMENT PLANS
The Company has tax qualified defined benefit pension plans covering United
Steelworkers of America ("USWA") represented hourly employees and substantially
all salaried employees and certain hourly employees and tax qualified defined
contribution pension plans covering certain other hourly employees. The defined
benefit plan covering USWA-represented employees provides for a defined monthly
benefit based on years of service. The defined benefit plan covering salaried
employees is based on contributions based on a percentage of compensation with a
minimum based on years of service. The defined contribution plans provide for
contributions based on a rate per hour worked for hourly employees. Costs for
the defined contribution plans are being funded currently. Unfunded accumulated
benefit obligations under the defined benefit plan are subject to annual minimum
cash funding requirements under the Employees Retirement Income Security Act
("ERISA").
The Company sponsors medical and life insurance programs for substantially
all employees. Similar group medical programs extend to a group of pensioners
and dependents. The management plan provides basic medical and major medical
benefits on a non-contributory basis through age 65.
STOCK-BASED COMPENSATION
Pursuant to the provisions of Statement of Financial Accounting Standards
No. 123 ("SFAS 123") "Accounting for Stock-Based Compensation", the Company
accounts for employee stock-based compensation under Accounting Principles Board
Opinion ("APB") No. 25, "Accounting for Stock Issued to Employees."
ENVIRONMENTAL MATTERS
The Company accrues for losses associated with environmental remediation
obligations when such losses are probable and reasonably estimable. Accruals for
estimated losses from environmental remediation obligations generally are
recognized no later than completion of the remedial feasibility study.
Such accruals are adjusted as further information develops or circumstances
change. Recoveries of environmental remediation costs from other parties are
recorded as assets when their receipt is deemed probable.
EARNINGS PER SHARE
In 1997, the Company adopted Statement of Financial Accounting Standards
No. 128 ("SFAS 128") "Earnings per Share." Pursuant to SFAS 128, basic earnings
per share is based on the weighted average number of shares of Common Stock
outstanding during each year, excluding redeemable common shares. Diluted
earnings per share gives effect to dilutive potential common shares outstanding
during the period.
FOREIGN CURRENCY TRANSLATION
Assets and liabilities of foreign subsidiaries have been translated at
current exchange rates, and related revenues and expenses have been translated
at average rates of exchange in effect during the year. Resulting cumulative
translation adjustments have been recorded as a separate component of
accumulated other comprehensive income.
NOTE A -- COLLECTIVE BARGAINING AGREEMENT
WPC's prior labor agreement with the USWA expired on October 1, 1996. On
August 1, 1997 WPC and the USWA announced that they had reached a tentative
agreement on the terms of a new collective bargaining
29
<PAGE> 31
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
agreement. The tentative agreement was ratified on August 12, 1997 by
USWA-represented employees, ending a ten month strike. The new collective
bargaining agreement provided for a defined benefit pension plan, a retirement
enhancement program, short-term bonuses and special assistance payments for
employees not immediately recalled to work and $1.50 in hourly wage increases
over its term of not less than five years. It also provided for the reduction of
850 jobs, mandatory multicrafting as well as modification of certain work
practices.
NOTE B -- HANDY & HARMAN ACQUISITION
On April 13, 1998, the Company completed the acquisition of Handy & Harman
("H&H") and merged it with a wholly-owned subsidiary of the Company (the
"Merger"). The transaction had a total value of approximately $651.4 million,
including the assumption of approximately $229.6 million in debt. The
acquisition was accounted for as a purchase business combination in accordance
with APB No. 16. Accordingly, the assets and liabilities of H&H have been
adjusted to reflect their relative fair values at the date of acquisition. The
excess of the purchase price over the fair value of the net assets acquired
totaled $292 million and is being amortized over a period of 40 years. The
Company financed the transaction through cash on hand and a private placement of
debt securities of the Company. See Note S.
The following unaudited pro forma disclosure is presented as if the H&H
acquisition had occurred on January 1 of the respective periods.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
------------------------
1997 1998
---------- ----------
(IN MILLIONS, EXCEPT PER
SHARE)
<S> <C> <C>
Revenue..................................................... $1,093.2 $1,765.8
Net income (loss) before extraordinary items................ (194.6) 36.5
Net income (loss)........................................... (220.6) 38.8
Basic income (loss) per share............................... (10.95) 1.00
Diluted income (loss) per share............................. (10.95) .95
</TABLE>
The results of H&H included in the pro forma have been adjusted to exclude
merger related transaction costs.
NOTE C -- SPECIAL CHARGE -- NEW LABOR AGREEMENT
The Company recorded a special charge of $92.7 million in 1997. The special
charge is primarily related to certain benefits included in its new collective
bargaining agreement.
The special charges included enhanced retirement benefits paid under the
defined benefit pension program which totaled $66.7 million and were recorded
under the provisions of Statement of Financial Accounting Standard No. 88,
"Employers' Accounting For Settlements and Curtailments of Defined Benefit
Pension Plans and for Termination Benefits" ("SFAS No. 88"), and various other
charges which totaled $26.0 million. These charges included $15.5 million for
signing and retention bonuses, $3.8 million for special assistance payments to
laid-off employees and other employee benefits and $6.7 million for the fair
value of a stock option grant to WPN Corp. for its performance in negotiating a
new labor agreement.
NOTE D -- PENSIONS, OTHER POSTRETIREMENT AND POSTEMPLOYMENT BENEFITS
Pension Programs
On August 12, 1997 WPC established a defined benefit pension plan for most
USWA represented employees pursuant to a new labor agreement. The plan includes
individual participant accounts of those USWA represented employees from the
prior hourly defined contribution plan and merges those accounts into the
defined benefit plan.
The Company also established a supplemental defined benefit pension plan
for substantially all salaried employees and provides defined contribution
pension plans for salaried and certain other hourly employees. These tax
qualified defined contribution plans provide, in the case of the salaried
employees an increasing company contribution based on age and in certain cases
an increasing contribution based on age and service. For the hourly employees,
company contributions are made for each hour worked based on the age of its
employees.
As of December 31, 1998, $120.3 million of fully vested funds are held in
trust for benefits earned under the hourly defined contribution pension plans.
Approximately 80% of the trust assets are invested in equities and 18% in fixed
income investments and 2% in cash and equivalents.
As of December 31, 1998, $38.3 million of fully vested funds are held in
trust for benefits earned under the salaried employees defined contribution
plan. Approximately 80% of the assets are invested in equities 18% are in
30
<PAGE> 32
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
fixed income investments, and 2% in cash and equivalents. All plan assets are
invested by professional investment managers.
All pension provisions charged against income totaled $9.3 million, $12.6
million and $14.2 million in 1996, 1997 and 1998, respectively. In 1997, the
Company also recorded a $66.7 million charge for enhanced retirement benefits
paid under the defined benefit pension plan, pursuant to a new labor agreement.
The Defined Benefit Plans
The plan covering most USWA represented employees was established pursuant
to a collective bargaining agreement ratified on August 12, 1997. Prior to that
date, benefits were provided through a defined contribution plan, the
Wheeling-Pittsburgh Steel Corporation Retirement Security Plan ("Retirement
Security Plan"). The plan also includes individual participant accounts from the
Retirement Security Plan. The assets of the Retirement Security Plan were merged
into the defined benefit pension plan as of December 1, 1997.
Since the plan includes the account balances from the Retirement Security
Plan, the plan includes both defined benefit and defined contribution features.
The gross benefit, before offsets, is calculated based on years of service and
the current benefit multiplier under the plan. This gross amount is then offset
for benefits payable from the Retirement Security Plan and benefits payable by
the Pension Benefit Guaranty Corporation from previously terminated plans.
Individual employee accounts established under the Retirement Security Plan are
maintained until retirement. Upon retirement, the account balances are converted
into monthly benefits that serve as an offset to the gross benefit, as described
above. Aggregate account balances held in trust in individual employee accounts,
which will be available upon retirement to offset the gross benefit, totaled
$119.4 million at December 31, 1998.
As part of WPC's new five-year labor agreement, the Company offered a
limited program of Retirement Enhancements. The Retirement Enhancement program
provided for unreduced retirement benefits to the first 850 employees who
retired after October 1, 1996. In addition, each retiring participant could
elect a lump sum payment of $25,000 or a $400 monthly supplement payable until
age 62. More than 850 employees applied for retirement under this program by
December 31, 1997. The Retirement Enhancement program represented a Curtailment
and Special Termination Benefits under SFAS No. 88. The Company recorded a
charge of $66.7 million in 1997 to cover the retirement enhancement program.
In May, 1998 WHX completed the merger of its pension plan with the pension
plan of its wholly owned H&H subsidiary. Under the terms of the merged WHX
Pension Plan, there are a series of benefit structures, which essentially
continue the various pension plans for employees of the WPC and H&H plans as
they existed before the merger.
At the time of the merger of the pension plans, the assets in the Handy &
Harman pension plans exceeded the plans' liabilities by approximately $155
million. At that time, the liabilities of the WHX pension plan exceeded their
assets by approximately $150 million. The pension plan merger thus eliminated
both the underfunding in the WHX pension plan and the Company's balance sheet
liability at the merger date, and materially reduced the Company's net periodic
pension expense in future periods. Furthermore, based on the Company's current
actuarial assumptions, the merged pension plan is substantially funded and will
therefore eliminate approximately $135 million of cash funding obligations of
the Company over the next four years.
The Company's funding policy is to contribute annually an amount that
satisfies the minimum funding standards of ERISA.
In 1998 the Company established a supplemental defined benefit plan
covering WPC salaried employees employed as of January 31, 1998 which provides a
guaranteed minimum benefit based on years of service and compensation. The gross
benefit from this plan is offset by the annuitized value of the defined
contribution plan account balance and any benefits payable from the Pension
Benefit Guaranty Corporation from the previously terminated defined benefit
pension plan.
31
<PAGE> 33
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The amounts (prepaid) accrued at December 31, included the following
components.
<TABLE>
<CAPTION>
POSTRETIREMENT BENEFITS
PENSION BENEFITS OTHER THAN PENSIONS
--------------------- ------------------------
1997 1998 1997 1998
--------- -------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit Obligation at beginning of year........ $ -- $172,431 $ 361,341 $ 308,812
Service cost................................... 2,278 6,163 3,337 2,264
Interest cost.................................. 4,172 16,495 21,573 19,539
Actuarial (gain)............................... -- 6,771 (24,792) (3,359)
Benefits paid.................................. (12,505) (30,232) (19,100) (28,074)
Plan Amendments -Implementation................ 101,295 813 (45,277) --
Business Combinations.......................... -- 122,442 -- 7,657
Curtailments/Settlements/Termination
Benefits.................................... 59,506 -- 11,730 --
Transfers from DC Plans........................ 17,685 14,270 -- --
--------- -------- --------- ---------
Benefit Obligation at December 31.............. $ 172,431 $309,153 $ 308,812 $ 306,839
--------- -------- --------- ---------
Change in plan assets:
Fair value of plan assets at beginning of
year........................................ $ -- $ 5,180 $ 13,010 $ 7,795
Actual return on plan assets................... -- 33,390 104 137
Benefits paid.................................. (12,505) (30,232) (5,319) (7,508)
Business combinations.......................... -- 275,132 -- --
Transfers from DC Plans........................ 17,685 14,270 -- --
--------- -------- --------- ---------
Fair value of plan assets at December 31....... $ 5,180 $297,740 $ 7,795 $ 424
--------- -------- --------- ---------
Plan assets in excess of (less than) benefit
obligation.................................. $(167,252) $(11,413) $(301,017) $(306,415)
Unrecognized prior service cost................ 76,714 71,017 (40,486) (36,568)
Unrecognized net actuarial (gain)loss.......... -- (15,107) (71,942) (70,094)
--------- -------- --------- ---------
Net amount recognized at December 31........... $( 90,538) $ 44,497 $(413,445) $(413,077)
========= ======== ========= =========
Amounts recognized in the statement of financial
position consists of:
Accrued benefit liability...................... $(167,252) $ (5,952) $(413,445) $(413,077)
Intangible asset............................... 76,714 50,449 -- --
--------- -------- --------- ---------
Net amount recognized at December 31........... $ (90,538) $ 44,497 $(413,445) $(413,077)
========= ======== ========= =========
</TABLE>
Net Periodic (credit) costs for pension and postretirement benefits other
than pensions (principally health care and life insurance) for employees and
covered dependents.
<TABLE>
<CAPTION>
POSTRETIREMENT BENEFITS
PENSION BENEFITS OTHER THAN PENSIONS
------------------ ---------------------------
1997 1998 1996 1997 1998
------- -------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Components of net periodic (credit) cost:
Service cost........................... $ 2,278 $ 6,163 $ 3,953 $ 2,488 $ 2,264
Interest cost.......................... 4,172 16,494 23,982 20,950 19,539
Expected return on plan assets......... -- (18,619) -- -- (156)
Curtailment (gain)/loss................ 66,676 -- -- -- --
Amortization of prior service cost..... 2,877 6,509 -- -- (3,918)
Recognized actuarial (gain)/loss....... -- (1,401) (3,888) (7,490) (5,696)
------- -------- ------- ------- -------
Total.................................. $76,003 $ 9,146 $24,047 $15,948 $12,033
======= ======== ======= ======= =======
</TABLE>
32
<PAGE> 34
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The discount rate and rates of compensation increases used in determining
the benefit obligations at December 31, 1998, 1997, and 1996, and the expected
long-term rate of return on assets in each of the years 1998, 1997, and 1996
were as follows:
<TABLE>
<CAPTION>
PENSION POSTRETIREMENT BENEFITS
BENEFITS OTHER THAN PENSIONS
------------ -----------------------
1997 1998 1996 1997 1998
---- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Discount rate......................................... 7.0% 6.5% 7.0% 7.0% 6.5%
Expected return on assets............................. 10.0% 10.0% 8.0% 8.0% 8.0%
Rate of compensation increase......................... N/A 4.0% -- -- --
Medical care cost trend rate.......................... -- -- 9.5% 9.0% 8.5%
</TABLE>
The following table presents the plans with the accumulated benefit
obligation in excess of plan assets.
<TABLE>
<CAPTION>
PENSION POSTRETIREMENT BENEFITS
BENEFITS OTHER THAN PENSIONS
-------------------- ------------------------
1997 1998 1997 1998
-------- -------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Projected benefit obligation................ $172,431 $309,153 $308,812 $306,839
Accumulated benefit obligation.............. 172,431 303,692 172,431 303,692
Fair value of assets........................ 5,180 297,740 7,795 424
</TABLE>
401-k PLANS
The Company matches salaried employee contributions to the WPC and H&H
401(k) plans with shares of the Company's Common Stock. WPC matches 50% of the
employees contributions with a limit of 3% of the employee's salary. H&H matches
50% of the first 3% of the employee's contribution. At December 31, 1996, 1997
and 1998, the 401(k) plans held 190,111 shares, 275,537 shares and 301,252
shares of the Company's Common Stock, respectively.
POSTEMPLOYMENT BENEFITS
The Company provides benefits to former or inactive employees after
employment but before retirement. Those benefits include, among others,
disability, severance and workers' compensation. The assumed discount rate used
to measure the benefit liability was 7.0% at December 31, 1997 and, 6.5% at
December 31, 1998.
OTHER POSTRETIREMENT BENEFITS
The Company sponsors postretirement benefit plans that cover certain
management and hourly retirees and dependents. The plans provide medical
benefits including hospital, physicians' services and major medical expense
benefits and a life insurance benefit. The hourly employees' plans provide
non-contributory basic medical and a supplement to Medicare benefits, and major
medical coverage to which the Company contributes 50% of the insurance premium
cost. The management plan has provided basic medical and major medical benefits
on a non-contributory basis through age 65.
The Company accounts for these benefits in accordance with SFAS No. 106.
The cost of postretirement medical and life benefits for eligible employees are
accrued during the employee's service period through the date the employee
reaches full benefit eligibility. The Company defers and amortizes recognition
of changes to the unfunded obligation that arise from the effects of current
actuarial gains and losses and the effects of changes in assumptions. The
Company funds the plans as current benefit obligations are paid. Additionally,
in 1994 the Company began funding a qualified trust in accordance with its
collective bargaining agreement. The new collective bargaining agreement
provides for the use of those funds to pay current benefit obligations and
suspends additional funding until 2002.
For measurement purposes, medical costs are assumed to increase at annual
rates as stated above and declining gradually to 4.5% in 2004 and beyond. The
health care cost trend rate assumption has significant effect on the costs and
obligation reported. A 1% increase in the health care cost trend rate in each
year would result in approximate increases in the APBO of $24.3 million, and net
periodic benefit cost of $4.3 million. A 1% decrease in the health care cost
trend rate would result in approximate decreases of $21.6 million in APBO and
net periodic benefit cost of $3.3 million.
33
<PAGE> 35
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
COAL INDUSTRY RETIREE HEALTH BENEFIT ACT
The Coal Industry Retiree Health Benefit Act of 1992 (the "Act") created a
new United Mine Workers of America postretirement medical and death benefit plan
to replace two existing plans which had developed significant deficits. The Act
assigns companies the remaining benefit obligations for former employees and
beneficiaries, and a pro rata allocation of benefits related to unassigned
beneficiaries ("orphans"). The Company's obligation under the Act relates to its
previous ownership of coal mining operations.
At December 31, 1997 the actuarially determined accrued liability
discounted at 7% covering 532 assigned retirees and dependents and 133 orphans,
totaled $10.8 million. The Company recorded an extraordinary charge of $1.7
million (net of tax) in 1997 related to assignment of additional orphans. At
December 31, 1998, the actuarially determined liability discounted at 6.5%
covering 494 assigned retirees and dependents and 188 orphans, totaled $11.0
million.
NOTE E -- INCOME TAXES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1996 1997 1998
------- --------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
INCOME TAXES BEFORE EXTRAORDINARY ITEMS
Current
Federal tax provision..................................... $ 2,065 $ -- $ 1,854
State tax provision....................................... 400 460 1,573
Foreign tax provision..................................... -- -- 22
------- --------- -------
Total income taxes current........................ 2,465 460 3,449
------- --------- -------
Deferred
Federal tax provision (benefit)........................... (6,572) (94,029) 19,575
State tax provision....................................... -- -- 362
------- --------- -------
Income tax provision (benefit).............................. $(4,107) $ (93,569) $23,386
======= ========= =======
TOTAL INCOME TAXES
Current
Federal tax provision..................................... $ 2,065 $ -- $ 1,854
State tax provision....................................... 400 460 1,573
Foreign tax provision..................................... -- -- 22
------- --------- -------
Total income taxes current........................ 2,465 460 3,449
------- --------- -------
Deferred
Federal tax provision (benefit)........................... (6,572) (108,024) 20,781
State tax provision....................................... -- -- 362
------- --------- -------
Income tax provision (benefit).............................. $(4,107) $(107,564) $24,592
======= ========= =======
COMPONENTS OF TOTAL INCOME TAXES
Operations.................................................. $(4,107) $ (93,569) $23,386
Extraordinary items......................................... -- (13,995) 1,206
------- --------- -------
Income tax provision (benefit).............................. $(4,107) $(107,564) $24,592
======= ========= =======
</TABLE>
34
<PAGE> 36
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Deferred income taxes result from temporary differences in the financial
basis and tax basis of assets and liabilities. The type of differences that give
rise to deferred income tax liabilities or assets are shown in the following
table:
DEFERRED INCOME TAX SOURCES
<TABLE>
<CAPTION>
1997 1998
--------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C>
ASSETS
Postretirement and postemployment employee benefits......... $ 147.7 $ 146.5
Operating loss carryforward (expiring in 2005 to 2012)...... 76.7 67.6
Minimum tax credit carryforwards (indefinite
carryforward)............................................. 49.5 52.1
Provision for expenses and losses........................... 87.0 49.0
Leasing activities.......................................... 23.8 22.2
State income taxes.......................................... 1.4 2.5
Miscellaneous other......................................... 7.5 5.8
------- -------
DEFERRED TAX ASSETS............................... $ 393.6 $ 345.7
------- -------
LIABILITIES
Property plant and equipment................................ $(166.1) $(173.1)
Inventory................................................... (34.9) (66.3)
Pension benefits............................................ -- (25.6)
State income taxes.......................................... (1.0) (8.5)
Miscellaneous other......................................... (6.8) (2.7)
------- -------
DEFERRED TAX LIABILITY............................ $(208.8) $(276.2)
------- -------
Valuation allowance......................................... (20.0) (28.1)
------- -------
DEFERRED INCOME TAX ASSET -- NET............................ $ 164.8 $ 41.4
======= =======
</TABLE>
As of December 31, 1998, for financial statement reporting purposes a
balance of approximately $20.0 million of prereorganization tax benefits exist.
These benefits will be reported as a direct addition to equity as they are
recognized. No prereorganization tax benefits were recognized in 1996, 1997 or
1998.
During 1998, the valuation allowance increased $8.1 million primarily due
to a change in judgement about the realizability of certain tax credit
carryforwards in future years as well as the addition of H&H's valuation
allowance of $3.2 million against the realizability of foreign operating loss
carryforwards.
Deferred income taxes have not been provided on the undistributed earnings
of foreign subsidiaries and other foreign investments carried at equity. These
earnings have been substantially reinvested and the Company does not plan to
initiate any action that would precipitate the payment of income taxes thereon.
During 1994, the Company experienced an ownership change as defined by
Section 382 of the Internal Revenue Code. As the result of this event,
pre-change of control net operating losses that can be used to offset post-
change of control pretax income will be limited to approximately $32 million per
year. Post-change of control net operating losses do not have an annual offset
limitation.
Total federal and state income taxes paid in 1996, 1997 and 1998 were $3.5
million and $0.7 million and $1.2 million, respectively.
Federal tax returns have been examined by the Internal Revenue Service
("IRS") through 1987. The statute of limitations has expired for years through
1993, however, the IRS can review prior years to adjust any NOL's incurred in
such years and carried forward to offset income in subsequent open years.
Management believes it has adequately provided for all taxes on income.
35
<PAGE> 37
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The provision for income taxes differs from the amount of income tax
determined by applying the applicable U.S. statutory federal income tax rate to
pretax income as follows:
<TABLE>
<CAPTION>
1996 1997 1998
------- --------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Income (loss) before taxes and extraordinary item........ $(3,449) $(267,341) $62,816
------- --------- -------
Tax provision (benefit) at statutory rate................ $(1,207) $ (93,569) $21,986
Increase (reduction) in tax due to:
Percentage depletion................................... (1,027) (1,092) (829)
Equity earnings........................................ (2,408) 338 (1,484)
Goodwill amortization.................................. -- -- 1,983
State income tax net of federal effect................. 260 299 1,258
Recognition of pre-acquisition benefits................ -- -- (4,519)
Change in valuation allowance.......................... -- -- 4,904
Other miscellaneous.................................... 275 455 87
------- --------- -------
Tax provision (benefit).................................. $(4,107) $ (93,569) $23,386
======= ========= =======
</TABLE>
NOTE F -- SHORT TERM INVESTMENTS
The composition of the Company's short term investments are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1997 1998
---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Trading Securities:
U.S. Treasury Securities.................................. $513,906 $640,125
U.S. Government Agency Mortgage Backed Obligations........ -- 3,880
Equities.................................................. -- 30,308
Other..................................................... 3,890 4,537
Available-for-sale securities:.............................. 63,754 23,232
-------- --------
Equities.................................................. $581,550 $702,082
======== ========
</TABLE>
These investments are subject to price volatility associated with any
interest bearing instrument. Fluctuations in general interest rates affect the
value of these investments.
The Company recognizes gains and losses based on specific identification of
the securities which comprise the investment balance with the exception of
Equity Securities, for which average cost is used. At December 31, 1997 and 1998
unrealized holding gains on available-for-sale securities of $24.3 million, and
$8.3 million, respectively, were reported, net of the related tax effect, as a
separate component of accumulated other comprehensive income. Net unrealized
holding gains and losses on trading securities included in net income for 1997
and 1998 were a gain of $17.4 million and a loss of $11.3 million, respectively.
At December 31, 1997 and 1998 the Company had short term margin borrowings of
$275.5 million and $487.5 million, respectively, related to the short term
investments.
During 1998, the Company sold available-for-sale securities for $21.7
million, recording a realized gain of $8.8 million. In 1998, the Company
reclassified $30.3 million of available-for-sale investments to the trading
category and recorded an unrealized gain upon transfer of $16.9 million. As a
result of the sale and reclassification, the Company recorded an unfavorable
reclassification adjustment within other comprehensive income of $16.6 million,
net of related income tax benefit of $9.1 million. During 1996 the Company sold
available-for-sale securities for $8.4 million, recording a realized gain of
$2.6 million. As a result of the sale, the Company recorded an unfavorable
reclassification adjustment within other comprehensive income of $.7 million,
net of related income tax benefit of $.4 million. During 1997 and 1998, the
Company recorded net unrealized gains on available-for-sale securities within
other comprehensive income of $15.8 million and $6.2 million, respectively, net
of tax expense of $8.5 million and $3.3 million, respectively.
36
<PAGE> 38
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE G -- INVENTORIES
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1997 1998
--------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Finished products........................................... $ 63,133 $ 80,021
In-process.................................................. 106,270 130,204
Raw materials............................................... 105,648 98,710
Precious metals............................................. -- 122,653
Other materials and supplies................................ 19,875 33,373
-------- --------
294,926 464,961
LIFO reserve................................................ (10,169) 2,169
-------- --------
$284,757 $467,130
======== ========
</TABLE>
During 1997 and 1998, certain inventory quantities were reduced, resulting
in liquidations of LIFO inventories, the effect of which increased income by
approximately $0.6 million and $1.8 million in 1997 and 1998, respectively.
NOTE H -- PROPERTY, PLANT AND EQUIPMENT
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1997 1998
---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Land and mineral properties................................. $ 26,424 $ 42,583
Buildings, machinery and equipment.......................... 1,069,215 1,221,534
Construction in progress.................................... 22,603 24,273
---------- ----------
1,118,242 1,288,390
Accumulated depreciation and amortization................... 379,582 469,313
---------- ----------
$ 738,660 $ 819,077
========== ==========
</TABLE>
WPC utilizes the modified units of production method of depreciation which
recognizes that the depreciation of steelmaking machinery is related to the
physical wear of the equipment as well as a time factor. The modified units of
production method provides for straight line depreciation charges modified
(adjusted) by the level of raw steel production. In 1997 and 1998 depreciation
under the modified units of production method was $21.6 million or 40% less and
$1.1 million or 2.0% more respectively, than straight line depreciation. The
1997 reduction in depreciation primarily reflects the ten month strike which
began October 1, 1996 and continued until August 12, 1997.
Depreciation on H&H and Unimast property, plant and equipment is provided
principally on the straight-line method over the estimated useful lives of the
assets.
37
<PAGE> 39
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE I -- LONG-TERM DEBT
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1997 1998
--------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Senior Unsecured Notes due 2007, 9 1/4%..................... $273,966 $274,071
Term Loan Agreement due 2006, floating rate................. 75,000 75,000
Senior Unsecured Notes due 2005, 10 1/2%.................... -- 302,000
Handy & Harman Senior Secured Credit Facility............... -- 228,654
Other....................................................... 1,953 14,243
-------- --------
350,919 893,968
Less portion due within one year............................ 466 612
-------- --------
Total Long-Term Debt(1)................................... $350,453 $893,356
======== ========
</TABLE>
- ---------------
(1) The fair value of long-term debt at December 31, 1997 and December 31, 1998
was $350.9 million and $851.5 million, respectively. Fair value of long-term
debt is estimated based on trading in the public market.
Long-term debt maturing in each of the next five years is as follows: 1999,
$612; 2000, $10,862; 2001, $10,412; 2002, $17,646; and 2003, $11,250.
A summary of the financial agreements at December 31, 1998 follows:
REVOLVING CREDIT FACILITY
On December 28, 1995, Wheeling-Pittsburgh Steel Corporation (WPSC), a
wholly-owned subsidiary of WPC, entered into a Second Amended and Restated
Revolving Credit Facility (RCF) with Citibank, N.A. as agent. The RCF, as
amended, provides for borrowings for general corporate purposes up to $150
million and a $35 million sub-limit for Letters of Credit.
The RCF expires May 3, 1999 and is currently being renegotiated. Interest
rates are based on the Citibank prime rate plus 1.0% and/or a Eurodollar rate
plus 2.25%, but the margin over the prime rate and the Eurodollar rate can
fluctuate based upon performance. A commitment fee of .5% is charged on the
unused portion. The letter of credit fee is 2.25% and is also performance based.
Borrowings are secured primarily by 100% of the eligible inventory of WPSC,
Pittsburgh-Canfield Corporation (PCC), and Wheeling Construction Products, Inc.
(WCPI), wholly-owned subsidiaries of WPC, and the terms of the RCF contain
various restrictive covenants, limiting among other things dividend payments or
other distribution of assets, as defined in the RCF. Certain financial covenants
associated with leverage, net worth, capital spending, cash flow and interest
coverage must be maintained. WPC, PCC and WCPI have each guaranteed all of the
obligations of WPSC under the RCF. Borrowings outstanding against the RCF at
December 31, 1998 and December 31, 1997 totaled $67.0 million and $89.8 million,
respectively. Letters of credit outstanding under the RCF were $8.6 million at
December 31, 1998.
In August 1994 WPSC entered into a separate facility for letters of credit
up to $50 million. At December 31, 1998 letters of credit totaling $7.7 million
were outstanding under this facility. The letters of credit are collateralized
at 105% with U.S. Government securities owned by the Company, and are subject to
an administrative charge of .4% per annum on the amount of outstanding letters
of credit.
9 3/8% SENIOR NOTES DUE 2003
On November 23, 1993 WPC issued $325 million of 9 3/8% Senior Notes.
Interest on the 9 3/8% Senior Notes is payable semi-annually on May 15 and
November 15 of each year, commencing May 15, 1994. The 9 3/8% Senior Notes
mature on November 15, 2003.
On November 26, 1997, WPC, under the terms of the 9 3/8% Indenture,
defeased the remaining $266.2 million 9 3/8% Senior Notes outstanding at a total
cost of $298.8 million. The 9 3/8% Senior Notes were placed into trusteeship
where they will be held until redemption on November 15, 2000.
38
<PAGE> 40
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
9 1/4% SENIOR NOTES DUE 2007
On November 26, 1997 WPC issued $275 million principal amount of 9 1/4%
Senior Notes. Interest on the 9 1/4% Senior Notes is payable semi-annually on
May 15 and November 15 of each year, commencing May 15, 1998. The 9 1/4% Senior
Notes mature on November 15, 2007. The 9 1/4% Senior Notes were exchanged for
identical notes which were issued pursuant to an exchange offer registered under
the Securities Act of 1933, as amended.
The 9 1/4% Senior Notes are redeemable at the option of WPC, in whole or in
part, on or after November 15, 2002 at specified redemption prices, plus accrued
interest and liquidated damages, if any, thereon to the date of redemption.
Upon the occurrence of a Change of Control (as defined), WPC will be
required to make an offer to repurchase all or any part of each holder's 9 1/4%
Senior Notes at 101% of the principal amount thereof, plus accrued and unpaid
interest and liquidated damages, if any, thereon to the date of repurchase.
The 9 1/4% Senior Notes are unsecured obligations of WPC, ranking senior in
right of payment to all existing and future subordinated indebtedness of WPC,
and pari passu with all existing and future senior unsecured indebtedness of
WPC, including borrowings under the Term Loan Agreement.
The 9 1/4% Senior Notes are fully and unconditionally guaranteed on a joint
and several and senior basis by the guarantors, which consist of WPC's present
and future operating subsidiaries. The 9 1/4% Senior Notes indenture contains
certain covenants, including, but not limited to, covenants with respect to: (i)
limitations on indebtedness; (ii) limitations on restricted payments; (iii)
limitations on transactions with affiliates; (iv) limitations on liens; (v)
limitations on sales of assets; (vi) limitations on issuance and sale of capital
stock of subsidiaries; (vii) limitations on dividends and other payment
restrictions affecting subsidiaries; and (vii) restrictions on consolidations,
mergers and sales of assets.
TERM LOAN AGREEMENT
On November 26, 1997 WPC entered into the Term Loan Agreement with DLJ
Capital Funding Inc., as syndication agent, pursuant to which it borrowed $75
million.
Amounts outstanding under the Term Loan Agreement bear interest at the Base
Rate (as defined therein) plus 2.25% or the LIBO Rate (as defined therein) plus
3.25%. Interest on the Term Loan Agreement is payable on March 15, June 15,
September 15 and December 15 as to Base Rate Loans, and with respect to LIBOR
loans on the last day of each applicable interest period, and if such interest
period shall exceed three months, at intervals of three months after the first
day of such interest period.
WPC's obligations under the Term Loan Agreement are guaranteed by its
present and future operating subsidiaries. WPC may prepay the obligations under
the Term Loan Agreement beginning on November 15, 1998, subject to a premium of
2.0% of the principal amount thereof. Such premium declines to 1.0% on November
15, 1999 with no premium on or after November 15, 2000.
10 1/2% SENIOR NOTES DUE 2005
On April 7, 1998 WHX issued $350 million principal amount of 10 1/2% Senior
Notes. Interest on the 10 1/2% Senior Notes is payable semi-annually on April 15
and October 15 of each year, commencing October 15, 1998. The 10 1/2% Senior
Notes mature on April 15, 2005. The 10 1/2% Senior Notes were exchanged for
identical notes which were issued pursuant to an exchange offer registered under
the Securities Act of 1933, as amended.
The 10 1/2% Senior Notes are redeemable at the option of WHX, in whole or
in part, on or after April 15, 2002 at specified prices, plus accrued interest
and liquidated damages, if any, thereon to the date of redemption.
Upon the occurrence of a Change of Control (as defined), the Company will
be required to make an offer to repurchase all or any part of each holder's
10 1/2% Senior Notes at 101% of the principal amount thereof, plus accrued
interest and liquidated damages, if any, thereon to the date of repurchase.
The 10 1/2% Senior Notes are unsecured obligations of WHX, ranking senior
in right of payment to all existing and future subordinated indebtedness of WHX,
and pari passu with all existing and future senior unsecured indebtedness of
WHX.
The 10 1/2% Senior Notes indenture contains certain covenants, including,
but not limited to, covenants with respect to: (i) limitations on indebtedness
and preferred stock; (ii) limitations on restricted payments;
39
<PAGE> 41
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(iii) limitations on transactions with affiliates; (iv) limitations on liens;
(v) limitations on sales of assets; (vi) limitations on dividends and other
payment restrictions affecting subsidiaries; and (vii) restrictions on
consolidations, mergers and sales of assets.
During the third quarter of 1998, the Company purchased $48.0 million
aggregate principal amount of 10 1/2% Senior Notes in the open market for $43.2
million.
HANDY & HARMAN SENIOR SECURED CREDIT FACILITY
On July 30, 1998 H&H entered into a $300 million Senior Secured Credit
facility (the "Facilities") with Citibank USA Inc. as agent. The Facilities are
comprised of (i) a $100 million 6-year Revolving Credit Facility, (ii) a $25
million 6-year Delayed Draw Term Loan Facility, (iii) a $50 million 6-year Term
Loan A Facility, and (iv) a $125 million 8-year Term Loan B Facility. Interest
under the Facilities is calculated at a rate determined either using (i) the
Citibank prime rate or (ii) LIBOR, plus the Applicable Margin in effect from
time to time. Applicable Margin means a percentage per annum determined by
reference to the total leverage ratio of H&H. The rates in effect until December
31, 1998 are (a) in the case of the Term A Facility, the Delayed Draw Facility
and the Revolving Credit Facility, calculated at LIBOR + 1.75% and (b) in the
case of the Term B facility, calculated at LIBOR + 2.50%. Borrowings under the
Facilities are secured by the pledge of 100% of the capital stock of all H&H's
active U.S. subsidiaries and 65% of the stock of H&H's non-U.S. subsidiaries. In
addition, H&H provided a perfected first priority lien on and security interest
in substantially all the assets of H&H and its subsidiaries. The Facilities have
certain financial covenants restricting indebtedness, liens and distributions.
In addition, the Facilities required H&H to procure an interest rate hedge
agreement covering a notional amount of not less than $125 million for a period
of no less than three years. H&H has entered into a cancelable interest-rate
swap to convert $125 million of its variable-rate debt to a fixed rate with
Citibank, N.A. New York. The fixed rate is 4.53 percent, effective January 4,
1999, with a termination date of January 5, 2004; provided however Citibank may
designate July 5, 2000 as the termination date. The Facilities replaced H&H's
$125 million Senior Notes due 2004 and its unsecured Revolving Credit Facility.
Letters of credit outstanding under the facilities totaled $16.2 million at
December 31, 1998.
UNIMAST REVOLVING CREDIT AGREEMENT
On November 24, 1998, Unimast entered into a Revolving Credit Agreement
(RCA) with The First National Bank of Chicago (First Chicago) as lender and
agent and Citicorp USA Inc. as lender and collateral agent. The RCA is for
general corporate purposes, including working capital needs and capital
expenditures up to $50 million with a $3 million sub-limit for letters of credit
(LC).
The RCA expires on November 24, 2003. Interest rates are based upon the
Eurodollar rate plus 2.125% and/or First Chicago corporate base rate plus the
federal funds rate plus 1.125%, but the margin over the Eurodollar rate and the
corporate base rate and federal funds rate can fluctuate based upon performance.
A commitment fee between 0.25% and 0.5% is charged on the unused portion of the
RCF. The letter of credit fees are 1.0625% for a commercial LC and 2.125% for a
standby LC. The commitment fees and the LC fees are all performance based.
Borrowings are secured primarily by 100% of the eligible inventory,
accounts receivable, and fixed assets of Unimast, and its subsidiaries.
Following the expiration of the sale of receivables (See Note N), borrowings
will be additionally secured by accounts receivable. The terms of the RCA
contain various restrictive covenants limiting dividend payments, major
acquisitions or other distribution of assets, as defined in the RCA. Certain
financial covenants associated with leverage, net worth, capital spending and
interest coverage must be maintained. Borrowings outstanding against the RCA at
December 31, 1998 totaled $5 million. No letters of credit were outstanding
under the RCA.
40
<PAGE> 42
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
INTEREST COST
Aggregate interest costs on debt and amounts capitalized during the three
years ended December 31, 1998, are as follows:
<TABLE>
<CAPTION>
1996 1997 1998
------- ------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Aggregate interest expense on debt.......................... $28,463 $31,274 $ 80,159
Less: Capitalized interest.................................. 2,500 2,227 2,063
------- ------- --------
Interest expense............................................ $25,963 $29,047 $ 78,096
======= ======= ========
Interest paid............................................... $27,660 $29,589 $ 73,070
======= ======= ========
</TABLE>
NOTE J -- STOCKHOLDERS' EQUITY
The authorized capital stock of WHX consists of 60,000,000 shares of Common
Stock, $.01 par value, of which 17,843,368 shares (including redeemable Common
Stock) were outstanding as of December 31, 1998 and 10,000,000 shares of
Preferred Stock, $0.10 par value, of which 2,907,880 shares of Series A
Convertible Preferred Stock and 2,975,100 shares of Series B Convertible
Preferred Stock were outstanding as of December 31, 1998. In 1997 and 1998, the
Company purchased 5,537,552 shares and 1,780,307 shares, respectively, of Common
Stock in open market purchases. In the first two months of 1999 the Company
purchased approximately 900,000 Common Shares in the open market.
SERIES A CONVERTIBLE PREFERRED STOCK
In July 1993 the Company issued 3,000,000 shares of Series A Convertible
Preferred Stock for net proceeds of $145.0 million. Dividends on the shares of
the Series A Convertible Preferred Stock are cumulative, are payable quarterly
in arrears on January 1, April 1, July 1 and October 1 of each year, in an
amount equal to $3.25 per share per annum.
Each share of the Series A Convertible Preferred Stock is convertible at
the option of the holder thereof at any time into shares of Common Stock of the
Company, par value $.01 per share, at a conversion price of $15.78 per share of
Common Stock (equivalent to a conversion rate of approximately 3.1686 shares of
Common Stock for each share of Series A Convertible Preferred Stock), subject to
adjustment under certain conditions.
The Series A Convertible Preferred Stock was not redeemable prior to July
1, 1996. On and after such date, the Series A Convertible Preferred Stock is
redeemable at the option of the Company, in whole or in part, for cash,
initially at $52.275 per share and thereafter at prices declining ratably to
$50.00 per share on and after July 1, 2003, plus in each case accrued and unpaid
dividends to the redemption date. The Series A Convertible Preferred Stock is
not entitled to the benefit of any sinking fund. In 1996 and 1997 the Company
purchased and retired 92,000 shares of Series A Convertible Preferred Stock on
the open market. An additional 120 shares were converted into Common Stock. No
additional shares were purchased during 1998.
SERIES B CONVERTIBLE PREFERRED STOCK
The Company issued 3,500,000 shares of Series B Convertible Preferred Stock
in September 1994 for net proceeds of $169.8 million. Dividends on the shares of
the Series B Convertible Preferred Stock are cumulative, are payable quarterly
in arrears on January 1, April 1, July 1 and October 1 of each year, in an
amount equal to $3.75 per share per annum.
Each share of the Series B Convertible Preferred Stock is convertible at
the option of the holder thereof at any time into shares of Common Stock of the
Company, par value $.01 per share, at a conversion price of $20.40 per share of
Common Stock (equivalent to a conversion rate of approximately 2.4510 shares of
Common Stock for each share of Series B Convertible Preferred Stock), subject to
adjustment under certain conditions.
The Series B Convertible Preferred Stock was not redeemable prior to
October 1, 1997. On and after such date, the Series B Convertible Preferred
Stock is redeemable at the option of the Company, in whole or in part, for cash,
initially at $52.625 per share and thereafter at prices declining ratably to
$50.00 per share on and after October 1, 2004, plus in each case accrued and
unpaid dividends to the redemption date. The Series B Convertible Preferred
Stock is not entitled to the benefit of any sinking fund. In 1996 and 1997 the
Company purchased and retired
41
<PAGE> 43
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
524,900 shares of Series B Convertible Preferred Stock in open market purchases.
No additional shares were purchased during 1998.
REDEEMABLE COMMON STOCK
Certain present and former employees of the Company were issued preferred
shares of the Company prior to the Chapter 11 proceeding of the Company's
predecessor in exchange for wage and salary concessions. Such preferred shares
were exchanged for 1,279,935 shares of Common Stock under the Chapter 11 Plan of
Reorganization, these shares were issued to an Employee Stock Ownership Plan
("ESOP") on such employees' behalf. Beneficial owners of such shares who were
active employees on August 15, 1990 and who have either retired, died or become
disabled, or who reach 30 years of service, may sell their Common Stock to the
Company at a price of $15 or, upon qualified retirement, $20 per share. These
contingent obligations are expected to extend over many years, as participants
in the ESOP satisfy the criteria for selling shares to the Company. In addition,
each beneficiary can direct the ESOP to sell any or all of its Common Stock into
the public markets at any time; provided, however, that the ESOP will not on any
day sell in the public markets more than 20% of the number of shares of Common
Stock traded during the previous day. As of December 31, 1998, 297,926 shares of
redeemable Common Stock remained outstanding.
STOCK OPTION PLAN
The WHX Corporation Stock Option Plan (1991 Plan) is intended to assist the
Company in securing and retaining key employees by allowing them to participate
in the ownership and growth of the Company through the grant of incentive and
non-qualified options (collectively, the Options) to full-time employees of the
Company and its subsidiaries. Incentive stock options granted under the Option
Plan are intended to be "Incentive Stock Options" as defined by Section 422 of
the Code.
An aggregate of 2,500,000 shares of Common Stock has been reserved for
issuance upon exercise of Options under the 1991 Plan. The Options vest over
three years from the date of grant. The 1991 Plan is administered by a committee
(the Committee) consisting of not less than three nonemployee members appointed
by the Board of Directors. The term of Options granted under the 1991 Plan may
not exceed 10 years (five years in the case of an incentive Option granted to an
optionee owning more than 10% of the voting stock of the Company (a 10%
Holder)). The Option price for Options shall not be less than 100% of the "fair
market value" of the shares of Common Stock at the time the Option is granted;
provided, however, that with respect to an incentive option, in the case of a
10% Holder, the purchase price per share shall be at least 110% of such fair
market value. The aggregate fair market value of the shares of Common Stock as
to which an optionee may first exercise incentive stock options in any calendar
year may not exceed $100,000. Payment for shares purchased upon exercise of
Options is to be made in cash, but, at the discretion of the Committee, may be
made by delivery of other shares of Common Stock of comparable value. The 1991
Plan will terminate on September 24, 2001 and may be terminated at any time by
the Board of Directors prior to that date.
DIRECTORS OPTION PLANS
The 1993 Directors D&O Plan (the 1993 D&O Plan) is authorized to issue
shares of Common Stock pursuant to the exercise of options with respect to a
maximum of 400,000 shares of Common Stock. The options vest over three years
from the date of grant. The 1997 Directors Stock Option Plan (1997 D&O Plan) is
authorized to issue an additional 400,000 shares of Common Stock.
OPTION GRANTS TO WPN CORP.
On July 29, 1993 (the Approval Date), the Board of Directors approved the
grant of options to WPN Corp. to purchase 1,000,000 shares of Common Stock (the
Option Grants). The Option Grants were approved by the stockholders on March 31,
1994.
On August 4, 1997 the compensation committee of the Board of Directors
granted an option to purchase 1,000,000 shares of Common Stock to WPN Corp, at
the then market price per share, subject to stockholder approval. The Board of
Directors approved such grant on September 25, 1997, and the stockholders
approved it on December 1, 1997 (measurement date).
The options under each plan are exercisable with respect to one-third of
the shares of Common Stock issuable upon the exercise thereunder at any time on
or after the date of stockholder approval of the Option Grants. The
42
<PAGE> 44
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
options with respect to an additional one-third of the shares of Common Stock
may be exercised on the first and second anniversaries of the Approval Date,
respectively. The options, to the extent not previously exercised, will expire
on April 29, 2003 and August 4, 2007, respectively.
The Company is required to record a charge for the fair value of the 1997
option grants under SFAS 123. The fair value of the option grant is estimated on
the measurement date using the Black -- Scholes option-pricing model. The
following assumptions were used in the Black -- Scholes calculation: expected
volatility of 48.3%, risk-free interest rate of 5.83%, an expected life of 5
years and a dividend yield of zero. The resulting estimated fair value of the
shares granted in 1997 was $6.7 million which was recorded as part of the
special charge related to the new labor agreement.
A Summary of the Option Plans:
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
---------------------------------
1991 D & O WPN OPTION PRICE WEIGHTED AVERAGE
PLAN PLAN GRANTS OR RANGE OPTION PRICE
--------- ------- --------- ------------- ----------------
<S> <C> <C> <C> <C> <C>
Balance 12/31/95.................... 1,158,417 292,000 1,000,000 $10.949
Granted........................... 23,000 34,000 -- $9.875-13.50 11.226
Cancelled......................... (8,423) -- -- 8.75-14.625 14.317
Exercised......................... (123,664) -- -- 6.125-8.750 7.667
--------- ------- ---------
Balance 12/31/96.................... 1,049,330 326,000 1,000,000 11.054
Granted........................... 982,500 166,000 1,000,000 6.875-13.8125 11.641
Cancelled......................... (222,802) (5,334) -- 8.75-14.625 13.648
Exercised......................... (172,639) -- -- 6.125-8.75 8.048
--------- ------- ---------
Balance 12/31/97.................... 1,636,389 486,666 2,000,000 11.342
--------- ------- ---------
Granted........................... 1,170,627 25,000 -- 10.00-16.625 15.516
Cancelled......................... (309,989) -- -- 8.75-14.625 13.865
Exercised......................... (160,890) -- -- 6.125-14.625 8.335
--------- ------- ---------
Balance 12/31/98.................... 2,336,137 511,666 2,000,000 12.277
========= ======= =========
</TABLE>
Options outstanding at December 31, 1998 which are exercisable totaled 2,831,403
and have a weighted average option price of $11.120. Options outstanding at
December 31, 1998, had a weighted-average remaining life of 7.3 years.
In 1996 the Company adopted SFAS No. 123, and elected to continue to
account for such compensation under the provisions of APB 25. Therefore, no
compensation costs have been recognized for the stock option plans in 1997 or
1998. Had the Company elected to account for stock-based compensation under the
provisions of SFAS No. 123 during 1996, 1997 and 1998, the effect on net income
and earnings per share in 1996 and 1997 would not be material. Had the Company
elected to account for stock-based compensation under the provision of SFAS No.
123 during 1998, the effect on net income would have been an additional expense
of $2.1 million, net of related income tax benefit of $1.1 million or $.11 per
share of Common Stock after deduction of Preferred Stock Dividends on a basic
and diluted basis. The fair value of the option grants is estimated on the
measurement date using the Black -- Scholes option-pricing model. The following
weighted-average assumptions were used in the Black -- Scholes calculation:
expected volatility of 46.5%, risk-free interest rate of 5.8%, an expected life
of 5 years and a dividend yield of zero.
EARNINGS PER SHARE
In 1997 the Company adopted SFAS No. 128, Earnings per Share. The
computation of basic earnings per common share is based upon the average shares
of Common Stock outstanding. In 1996 and 1997, the conversion of preferred
shares and redeemable common stock and exercise of options and warrants would
have had an anti-dilutive effect. The computation of earnings per common
share -- assuming dilution in 1998 assumes conversion of
43
<PAGE> 45
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
redeemable common stock and exercise of outstanding stock options. Previously
reported EPS has been restated. A reconciliation of the income and shares used
in the computation follows:
RECONCILIATION OF INCOME AND SHARES IN EPS CALCULATION
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1998
---------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ---------
(DOLLARS AND SHARES IN THOUSANDS)
<S> <C> <C> <C>
Income before extraordinary item............................ $39,430
Less: Preferred stock dividends............................. 20,608
Basic EPS
-------
Income available to common stockholders................... $18,822 18,198 $1.04
Effect of Dilutive Securities
Options................................................... $ -- 566
Convertible preferred stock............................... -- --
Redeemable common stock................................... -- 298
Diluted EPS
Income available to common stockholders plus assumed
------- ------
conversions............................................ $18,822 19,062 $ .99
======= ====== =====
</TABLE>
The assumed conversion of preferred stock would have an anti-dilutive effect on
earnings per share.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1997
---------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ---------
(DOLLARS AND SHARES IN THOUSANDS)
<S> <C> <C> <C>
Loss before extraordinary item.............................. $(173,772)
Less: Preferred stock dividends............................. 20,657
Basic EPS and Diluted EPS
---------
Loss available to common stockholders..................... $(194,429) 22,028 $(8.83)
========= ====== ======
</TABLE>
The assumed conversion of stock options, preferred stock and redeemable common
stock would have an anti-dilutive effect on earnings per share.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1996
---------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ---------
(DOLLARS AND SHARES IN THOUSANDS)
<S> <C> <C> <C>
Income before extraordinary item............................ $ 658
Less: Preferred stock dividends............................. 22,313
Basic EPS and Diluted EPS
--------
Income (loss) available to common stockholders............ $(21,655) 26,176 $(0.83)
======== ====== ======
</TABLE>
The assumed conversion of stock options, preferred stock and redeemable common
stock would have an anti-dilutive effect on earnings per share.
NOTE K -- COMMITMENTS AND CONTINGENCIES
ENVIRONMENTAL MATTERS
The Company has been identified as a potentially responsible party under
the Comprehensive Environmental Response, Compensation and Liability Act
("Superfund") or similar state statutes at several waste sites. The Company is
subject to joint and several liability imposed by Superfund on potentially
responsible parties. Due to the technical and regulatory complexity of remedial
activities and the difficulties attendant to identifying potentially responsible
parties and allocating or determining liability among them, the Company is
unable to reasonably estimate the ultimate cost of compliance with Superfund
laws. The Company believes, based upon information currently available, that the
Company's liability for clean up and remediation costs in connection with one of
these
44
<PAGE> 46
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
sites, reclamation will be between $2.5 and $3.0 million. At several other sites
the Company estimates costs to aggregate less than $1.0 million. The Company is
currently funding its share of remediation costs.
The Company, as are other industrial manufacturers, is subject to
increasingly stringent standards relating to the protection of the environment.
In order to facilitate compliance with these environmental standards, the
Company has incurred capital expenditures for environmental control projects
aggregating $6.8 million, $12.4 million and $9.5 million for 1996, 1997 and
1998, respectively. The Company anticipates spending approximately $30.8 million
in the aggregate on major environmental compliance projects through the year
2002, estimated to be spent as follows: $7.5 million in 1999, $7.3 million in
2000, $7.2 million in 2001 and $8.8 million in 2002. Due to the possibility of
unanticipated factual or regulatory developments, the amount of future
expenditures may vary substantially from such estimates.
Non-current accrued environmental liabilities totaled $10.6 million at
December 31, 1997 and $12.7 million at December 31, 1998. These accruals were
initially determined by the Company in January 1991, based on all then available
information. As new information becomes available, including information
provided by third parties, and changing laws and regulation the liabilities are
reviewed and the accruals adjusted quarterly. Management believes, based on its
best estimate, that the Company has adequately provided for remediation costs
that might be incurred or penalties that might be imposed under present
environmental laws and regulations.
Based upon information currently available, including the Company's prior
capital expenditures, anticipated capital expenditures, consent agreements
negotiated with Federal and state agencies and information available to the
Company on pending judicial and administrative proceedings, the Company does not
expect its environmental compliance and liability costs, including the
incurrence of additional fines and penalties, if any, relating to the operation
of its facilities, to have a material adverse effect on the financial condition
or results of operations of the Company. However, as further information comes
into the Company's possession, it will continue to reassess such evaluations.
NOTE L -- RELATED PARTY TRANSACTIONS
The Chairman of the Board of the Company is the president and sole
shareholder of WPN Corp. Pursuant to a management agreement effective as of
January 3, 1991, as amended January 1, 1993, April 11, 1994, January 1, 1998 and
April 13, 1998, approved by a majority of the disinterested directors of the
Company, WPN Corp. provides certain financial, management advisory and
consulting services to the Company. Such services include, among others,
identification, evaluation and negotiation of acquisitions and divestitures,
responsibility for financing matters for the Company and its subsidiaries,
review of annual and quarterly budgets, supervision and administration, as
appropriate, of all the Company's accounting and financial functions and review
and supervision of reporting obligations under Federal and state securities
laws. In exchange for such services, WPN Corp. received a fixed monthly fee of
$458,333 in 1996 and 1997 and from January 1 through April 13, 1998. Commencing
April 14, 1998 until December 31, 1998, WPN Corp. received a monthly fee of
$520,833. In addition to the fixed monthly fee in 1997, the Company paid a
$300,000 bonus to WPN Corp. for its services in obtaining a new five-year labor
contract with significant job reductions. In 1998, the Company paid WPN Corp. a
bonus of $3.75 million in recognition of the extraordinary return earned by WPN
on behalf of the Company in its management of the Company's cash and marketable
securities. The management agreement has a two year term and is renewable
automatically for successive one year periods, unless terminated by either party
upon 60 days' prior written notice. WPN Corp. also receives certain benefits
from financial intermediaries which it transacts business with on behalf of the
Company in the form of research materials and services, which are used by WPN
Corp. on behalf of the Company and in connection with its other activities. For
fiscal year 1998, the amount of such reimbursement was approximately $75,000.
In 1997, the stockholders approved a grant of an option to purchase
1,000,000 shares of Common Stock to WPN Corp. for their performance in obtaining
a new labor agreement. The options were valued using the Black-Scholes formula
at $6.7 million and recorded as a special charge related to the labor contract.
45
<PAGE> 47
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE M -- OTHER INCOME
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1996 1997 1998
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Interest and investment income.............................. $19,660 $52,092 $88,781
Equity income (loss)........................................ 9,496 (1,644) 5,699
Receivables securitization fees............................. (4,934) (3,826) (6,192)
Other, net.................................................. 1,752 4,046 1,408
------- ------- -------
$25,974 $50,668 $89,696
======= ======= =======
</TABLE>
NOTE N -- SALE OF RECEIVABLES
In 1994, a special purpose wholly-owned subsidiary of WPSC entered into an
agreement to sell (up to $75 million on a revolving basis) an undivided
percentage ownership in a designated pool of accounts receivable generated by
WPSC, WCPI and PCC. The agreement expires in August 1999. In July 1995 WPSC
amended such agreement to sell an additional $20 million on similar terms and
conditions. In October 1995 WPSC entered into an agreement to include the
receivable generated by Unimast in the pool of accounts receivable sold.
Accounts receivable at December 31, 1997 and 1998 exclude $69 million and $95
million, respectively, representing uncollected accounts receivable sold with
recourse limited to the extent of uncollectible balances. Fees paid by the
Company under such agreement range from 5.5438% to 8.50% of the outstanding
amount of receivables sold. Based on the Company's collection history, the
Company believes that credit risk associated with the above arrangement is
immaterial.
NOTE O -- INFORMATION ON SIGNIFICANT JOINT VENTURES
The Company owns 35.7% of Wheeling-Nisshin, Inc. (Wheeling-Nisshin).
Wheeling-Nisshin had total debt outstanding at December 31, 1997 and 1998 of
approximately $18.5 million and $11.6 million, respectively. The Company derived
approximately 3.9% and 9.8% of its revenues from sale of steel to
Wheeling-Nisshin in 1997 and 1998 respectively. The increase in revenue reflects
the effect of the strike on the company's shipments to Wheeling-Nisshin, Inc. in
1997. The Company received dividends of $2.5 million annually from
Wheeling-Nisshin in 1996 and 1997 and $5.0 million in 1998. Amounts due the
Company at December 31, 1998 totaled $4.0 million. Audited financial statements
of Wheeling-Nisshin are presented under Item 14 because it was considered a
significant subsidiary of the Company in 1996 under SEC regulations.
The Company owns 50.0% of Ohio Coatings Company (OCC). OCC had total debt
outstanding at December 31, 1997 and 1998 of approximately $57.2 million. The
Company derived approximately 0.8% and 4.1% of its revenues from sale of steel
to OCC in 1997 and 1998 respectively. The increase in revenue reflects the
effect of the strike on the Company's shipments to OCC in 1997. Amounts due the
Company at December 31, 1998 totaled $28.0 million, including an advance of
$16.5 million.
NOTE P -- EXTRAORDINARY ITEMS
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-----------------------
1997 1998
---------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Premium (discount) on early debt retirement................. $ 32,600 $(4,779)
Unamortized debt issuance cost.............................. 4,770 1,332
Coal retiree medical benefits............................... 2,615 --
Income tax effect........................................... (13,995) 1,206
-------- -------
$ 25,990 $(2,241)
======== =======
</TABLE>
In the third quarter of 1998 the Company purchased and retired $48.0
million aggregate principal amount of 10 1/2% Senior Notes in the open market
resulting in a $2.4 million gain, net of tax.
In November 1997 the Company paid a premium of $32.6 million to defease the
remaining $266.2 million of the 9 3/8 Senior Notes at a total cost of $298.8
million.
46
<PAGE> 48
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In 1997 a 7% discount rate was used to calculate the actuarially determined
coal retiree medical benefit liability compared to 7.5% in 1996. In 1997 the
Company also incurred higher premiums for additional retirees and orphans
assigned in 1995. See Note D.
NOTE Q -- SUPPLEMENTAL WHX PARENT COMPANY SUMMARIZED FINANCIAL INFORMATION
WHX Parent Company summarized financial information is included because of
certain restrictions placed on subsidiaries as a result of credit agreements
that restrict the transfer or dividend of cash or assets to the parent company.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1996 1997 1998
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
INCOME DATA
Net sales................................................. $ -- $ -- $ --
Cost of products sold, excluding depreciation............. -- (3,000) 252
Depreciation.............................................. 1,169 1,263 1,583
Selling, general and administrative expense............... 7,258 7,428 5,843
------- ------- -------
Operating income(expense)................................. (8,427) (5,691) (7,678)
Interest expense on debt.................................. -- -- 26,385
Other income(expense)..................................... 16,808 51,342 87,308
------- ------- -------
Income before tax and extraordinary item.................. 8,381 45,651 53,245
Tax provision............................................. 3,046 15,978 18,586
------- ------- -------
Income before extraordinary item.......................... 5,335 29,673 34,659
Extraordinary item........................................ -- -- 2,241
------- ------- -------
Net Income................................................ $ 5,335 $29,673 $36,900
======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------
1996 1997 1998
-------- -------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA
Assets
Current assets............................................ $449,569 $590,011 $ 704,735
Non-current assets........................................ 253,545 291,842 703,351
-------- -------- ----------
Total Assets................................................ $703,114 $881,853 $1,408,086
======== ======== ==========
Liabilities and Stockholder's Equity
Current liabilities....................................... $ 77,103 $282,931 $ 504,835
Non-current liabilities................................... 8,771 4,809 305,629
Stockholder's equity...................................... 617,240 594,113 597,622
-------- -------- ----------
Total Liabilities and Stockholder's Equity.................. $703,114 $881,853 $1,408,086
======== ======== ==========
</TABLE>
NOTE R -- REPORTED SEGMENTS
The Company's reportable operating segments consist of WPC, H&H and
Unimast, each providing their own unique products and services. Each of these
segments is independently managed and requires different production technology
and marketing and distribution channels. The accounting policies of the segments
are consistent with those of the Company, as discussed in the summary of
significant accounting policies.
For the periods presented, intersegment sales and transfers were conducted
as if the sales or transfers were to third parties, that is, at prevailing
market prices. Income taxes are allocated to the segments in accordance with the
Company's tax sharing agreement, which generally requires separate segment tax
calculations. The benefit, if any, of WPC NOL carryforwards are allocated to
WPC.
47
<PAGE> 49
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The table below presents information about reported segments and a
reconciliation of total segment sales to total consolidated sales for the years
ending December 31.
<TABLE>
<CAPTION>
SEGMENT CONSOLIDATED
WPC H&H* UNIMAST ALL OTHER TOTAL ADJUSTMENTS TOTAL
---------- -------- -------- ---------- ---------- ----------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
1998
Revenues......................... $1,111,541 $350,286 $205,444 $ -- $1,667,271 $(21,773) $1,645,498
Intersegment revenues............ 21,773 -- -- -- 21,773 -- 21,773
Net interest expense............. 36,699 13,188 2,462 26,385 78,734 (638) 78,096
Depreciation and amortization.... 76,321 15,585 3,381 1,583 96,870 -- 96,870
Equity income (loss)............. 5,333 588 -- (222) 5,699 -- 5,699
Income taxes..................... (3,101) 7,271 630 18,586 23,386 -- 23,386
Segment net income (loss)........ (6,503) 4,785 6,582 36,900 41,764 (93) 41,671
Segment assets................... 1,256,367 668,362 60,697 1,408,086 3,393,512 (681,428) 2,712,084
Investment in equity-method
subsidiaries................... 69,075 4,507 -- 11,396 84,978 -- 84,978
Capital expenditures............. 33,595 10,701 3,954 -- 48,250 -- 48,250
1997
Revenues......................... $ 489,662 $ -- $156,678 $ -- $ 646,340 $ (4,244) $ 642,096
Intersegment revenues............ 4,244 -- -- -- 4,244 -- 4,244
Net interest expense............. 27,204 -- 2,296 -- 29,500 (453) 29,047
Depreciation and amortization.... 46,203 -- 1,978 1,264 49,445 -- 49,445
Equity income (loss)............. (1,206) -- -- (438) (1,644) -- (1,644)
Income taxes..................... (110,035) -- 488 15,978 (93,569) -- (93,569)
Extraordinary item............... (25,990) -- -- -- (25,990) -- (25,990)
Segment net income (loss)........ (230,453) -- 1,086 29,673 (199,694) (68) (199,762)
Segment assets................... 1,424,568 -- 54,538 881,853 2,360,959 (299,039) 2,061,920
Investment in equity-method
subsidiaries................... 68,742 -- -- 11,667 80,409 -- 80,409
Capital expenditures............. 33,755 -- 3,024 -- 36,779 -- 36,779
1996
Revenues......................... $1,110,684 $ -- $133,495 $ -- $1,244,179 $(11,484) $1,232,695
Intersegment revenues............ 11,484 -- -- -- 11,484 -- 11,484
Net interest expense............. 23,763 -- 2,200 -- 25,963 -- 25,963
Depreciation and amortization.... 66,125 -- 1,661 1,170 68,956 -- 68,956
Equity income (loss)............. 9,496 -- -- -- 9,496 -- 9,496
Income taxes..................... (7,509) -- 296 3,106 (4,107) -- (4,107)
Segment net income (loss)........ (5,283) -- 606 5,335 658 -- 658
Segment assets................... 1,245,892 -- 47,884 703,114 1,996,890 (278,111) 1,718,779
Investment in equity-method
subsidiaries................... 65,297 -- -- 12,106 77,403 -- 77,403
Capital expenditures............. 31,188 -- 4,248 -- 35,436 -- 35,436
</TABLE>
- ---------------
* Results prior to April 13, 1998 are not reported in WHX consolidations and
therefore have been omitted from this comparison.
The following is sales and long-lived asset information by geographic area
as of and for the years ended December 31,:
GEOGRAPHIC INFORMATION
<TABLE>
<CAPTION>
REVENUES LONG-LIVED ASSETS(1)
---------------------------------- ------------------------------
1996 1997 1998 1996 1997 1998
---------- -------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
United States................................... $1,232,695 $642,096 $1,596,831 $832,815 $819,069 $887,659
Foreign......................................... -- -- 48,667 -- -- 16,396
---------- -------- ---------- -------- -------- --------
$1,232,695 $642,096 $1,645,498 $832,815 $819,069 $904,055
========== ======== ========== ======== ======== ========
</TABLE>
48
<PAGE> 50
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Foreign revenue is based on the country in which the legal subsidiary is
domiciled. Revenue from no single foreign country was material to the
consolidated revenues of the Company.
- ---------------
(1) Includes property, plant and equipment and investments in affiliates.
During 1996 one customer accounted for 11.5% of total revenues.
NOTE S -- ACQUISITION OF HANDY & HARMAN AND OTHER
The fair value of the assets acquired and liabilities assumed in 1998
acquisitions are as follows:
<TABLE>
<CAPTION>
HANDY & HARMAN OTHER
-------------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Current assets.............................................. $ 269,374 $ 2,188
Property, plant & equipment................................. 124,148 503
Other long-term assets...................................... 155,426 --
Goodwill.................................................... 291,931 10,121
Current liabilities......................................... (120,790) (157)
Debt........................................................ (229,600) (4,320)
Other long-term liabilities................................. (74,635) --
--------- -------
Purchase price, net of cash acquired........................ $ 415,854 $ 8,335
========= =======
</TABLE>
The fair value of property, plant and equipment was determined as of the
date of acquisition by independent appraisal.
NOTE T -- QUARTERLY INFORMATION (UNAUDITED)
Financial results by quarter for the two fiscal years ended December 31,
1997 and 1998 are as follows:
<TABLE>
<CAPTION>
BASIC
EARNINGS BASIC DILUTED
(LOSS) EARNINGS EARNINGS
PER SHARE (LOSS) (LOSS)
GROSS EXTRA- NET BEFORE PER SHARE PER SHARE
NET PROFIT ORDINARY INCOME EXTRAORDINARY ON NET ON NET
SALES (LOSS) ITEMS (LOSS) ITEMS INCOME INCOME
-------- -------- -------- -------- ------------- --------- ---------
(DOLLARS, EXCEPT PER SHARE, IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
1997:(1)
1st Quarter............ $113,632 $(27,520) $ -- $(40,724) $(1.92) $(1.92) $(1.92)
2nd Quarter............ 128,472 (17,043) -- (31,107) (1.58) (1.58) (1.58)
3rd Quarter............ 144,612 (28,314) -- (91,387) (4.49) (4.49) (4.49)
4th Quarter............ 255,380 (5,749) (25,990) (36,544) (.79) (2.11) (2.11)
1998:(2)
1st Quarter............ 304,078 34,421 -- 1,088 (.21) (.21) (.21)
2nd Quarter............ 464,455 88,523 -- 14,067 .48 .48 .39
3rd Quarter............ 459,563 79,313 2,241 24,023 .91 1.03 .68
4th Quarter............ 417,402 66,810 -- 2,493 (.15) (.15) (.15)
</TABLE>
- ---------------
Diluted loss per share would be the same as basic loss per share in loss
quarters because conversion of stock options, convertible Series A and Series B
Preferred Stock or redeemable Common Stock would be anti-dilutive.
(1) The financial results of the Company for all four quarters of 1997 were
adversely affected by the strike. Negative impacts of the strike included
the volume effect of lower production on fixed cost absorption, higher
levels of external steel purchases, start-up costs and a higher-cost mix of
products shipped.
(2) 1998 results reflect the acquisition of H&H from April 13, 1998.
49
<PAGE> 51
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURES.
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Incorporated by reference to the information appearing under the heading
"Election of Directors" in the Company's definitive proxy statement for the 1999
Annual Meeting of Stockholders.
ITEM 11. MANAGEMENT REMUNERATION
Incorporated by reference to the information appearing under the heading
"Executive Compensation" in the Company's definitive proxy statement for the
1999 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Incorporated by reference to the information appearing under the heading
"Security Ownership" in the Company's definitive proxy statement for the 1999
Annual Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Incorporated by reference to the information appearing under the heading
"Certain Relationships and Related Transactions" in the Company's definitive
proxy statement for the 1999 Annual Meeting of Stockholders.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 2. Audited Financial Statements of Wheeling-Nisshin, Inc.
The following audited Financial Statements of Wheeling-Nisshin, Inc. are
presented because Wheeling-Nisshin is considered a significant subsidiary as
defined under SEC Regulations.
50
<PAGE> 52
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Board of Directors of
Wheeling-Nisshin, Inc.:
In our opinion, the accompanying balance sheets and the related statements
of income, shareholders' equity and of cash flows present fairly, in all
material respects, the financial position of Wheeling-Nisshin, Inc. (the
Company) at December 31, 1998 and 1997, and the results of its operations and
its cash flows for each of the three years in the period ended December 31,
1998, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards, which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers L.L.P.
Pittsburgh, Pennsylvania
February 16, 1999
51
<PAGE> 53
WHEELING-NISSHIN, INC.
BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
--------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 21,278 $ 22,313
Investments............................................... 48,659 28,500
Trade accounts receivable, net of allowance for bad debts
of $250 in 1998 and 1997 (Note 8)...................... 10,262 16,364
Inventories (Note 3)...................................... 13,797 16,793
Prepaid income taxes...................................... 1,507 139
Deferred income taxes (Note 6)............................ 2,654 2,342
Other current assets...................................... 432 622
-------- --------
Total current assets.............................. 98,589 87,073
Property, plant and equipment, net (Note 4)................. 111,788 124,787
Debt issuance costs, net of accumulated amortization of
$1,792 in 1998 and $1,704 in 1997......................... 109 197
Other assets................................................ 602 719
-------- --------
Total assets...................................... $211,088 $212,776
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 5,381 $ 10,684
Due to affiliates (Note 8)................................ 3,968 3,356
Accrued interest.......................................... 237 367
Other accrued liabilities................................. 3,970 3,260
Accrued profit sharing.................................... 6,290 4,644
Current portion of long-term debt (Note 5)................ 6,775 6,835
-------- --------
Total current liabilities......................... 26,621 29,146
Long-term debt, less current portion (Note 5)............... 4,824 11,645
Deferred income taxes (Note 6).............................. 26,271 25,262
Other long-term liabilities (Note 9)........................ 2,500 2,500
-------- --------
Total liabilities................................. 60,216 68,553
-------- --------
Commitments and contingencies (Note 8 and 9)................
Shareholders' equity:
Common stock, no par value; authorized, issued and
outstanding, 7,000 shares.............................. 71,588 71,588
Retained earnings......................................... 79,284 72,635
-------- --------
Total shareholders' equity............................. 150,872 144,223
-------- --------
Total liabilities and shareholders' equity........ $211,088 $212,776
======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
52
<PAGE> 54
WHEELING-NISSHIN, INC.
STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Net Sales (Note 8).......................................... $379,415 $396,278 $375,658
Cost of goods sold (Note 8)................................. 341,877 365,967 335,071
-------- -------- --------
Gross profit........................................... 37,538 30,311 40,587
Selling, general and administrative expenses................ 6,957 5,608 6,546
-------- -------- --------
Operating profit....................................... 30,581 24,703 34,041
-------- -------- --------
Other income (expense):
Interest and other income................................. 3,002 2,203 2,539
Interest expense.......................................... (985) (1,398) (1,909)
-------- -------- --------
2,017 805 630
-------- -------- --------
Income before income taxes............................. 32,598 25,508 34,671
Provision for income taxes (Note 6)......................... 11,949 9,435 13,110
Net income............................................. $ 20,649 $ 16,073 $ 21,561
======== ======== ========
Earnings per share.......................................... $ 2.95 $ 2.30 $ 3.08
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
53
<PAGE> 55
WHEELING-NISSHIN, INC.
STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
RETAINED
COMMON STOCK EARNINGS TOTAL
------------ -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Balance at December 31, 1995................................ $71,588 $ 49,001 $120,589
Net income.................................................. -- 21,561 21,561
Cash dividends ($1 per share)............................... -- (7,000) (7,000)
------- -------- --------
Balance at December 31, 1996................................ 71,588 63,562 135,150
Net income.................................................. -- 16,073 16,073
Cash dividends ($1 per share)............................... -- (7,000) (7,000)
------- -------- --------
Balance at December 31, 1997................................ 71,588 72,635 144,223
Net income.................................................. -- 20,649 20,649
Cash dividends ($2 per share)............................... -- (14,000) (14,000)
------- -------- --------
Balance at December 31, 1998................................ $71,588 $ 79,284 $150,872
======= ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
54
<PAGE> 56
WHEELING-NISSHIN, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................ $ 20,649 $ 16,073 $ 21,561
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 13,396 13,065 12,952
Loss on disposal of land............................... 6 -- --
Deferred income taxes.................................. 697 1,141 5,330
Net change in operating assets and liabilities:
Decrease (increase) in trade accounts receivable..... 6,102 3,401 (730)
Decrease (increase) in inventories................... 2,996 5,440 (3,467)
(Increase) decrease in prepaid and accrued income
taxes............................................. (1,368) (3,322) (51)
Decrease (increase) in other assets.................. 190 197 (636)
(Decrease) increase in accounts payable.............. (5,303) (10,542) 12,846
Increase (decrease) in due to affiliates............. 612 3,356 (6,036)
Decrease in accrued interest......................... (130) (130) (173)
(Decrease) increase in other accrued liabilities..... 2,356 (1,989) 945
-------- -------- --------
Net cash provided by operating activities......... 40,203 26,690 42,541
-------- -------- --------
Cash flows from investing activities:
Capital expenditures, net................................. (222) (959) (1,173)
Proceeds from sale of land................................ 24 -- --
Purchase of investments................................... (44,214) (43,700) (19,900)
Maturity of investments................................... 24,055 35,100 --
-------- -------- --------
Net cash used in investing activities............. (20,357) (9,559) (21,073)
-------- -------- --------
Cash flows from financing activities:
Payments on long-term debt................................ (6,881) (6,835) (11,361)
Payment of dividends...................................... (14,000) (7,000) (7,000)
-------- -------- --------
Net cash used in financing activities............. (20,881) (13,835) (18,361)
-------- -------- --------
Net increase (decrease) in cash and cash equivalents........ (1,035) 3,296 3,107
Cash and cash equivalents:
Beginning of the year..................................... 22,313 19,017 15,910
-------- -------- --------
End of the year........................................... $ 21,278 $ 22,313 $ 19,017
======== ======== ========
Supplemental cash flow disclosures:
Cash paid during the year for:
Interest............................................... $ 1,115 $ 1,528 $ 2,082
======== ======== ========
Income taxes........................................... $ 12,622 $ 11,616 $ 7,831
======== ======== ========
Supplemental schedule of noncash investing and financing
activities:
Acquisition of property, plant and equipment included in
other long-term liabilities (Note 9)................... $ -- $ 2,500 $ --
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
55
<PAGE> 57
WHEELING-NISSHIN, INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
1. DESCRIPTION OF BUSINESS:
Wheeling-Nisshin, Inc. (the Company) is engaged in the production and
marketing of galvanized and aluminized steel products at a manufacturing
facility in Follansbee, West Virginia. Principally all of the Company's sales
are to ten trading companies located primarily in the United States. At December
31, 1998, Nisshin Holding Incorporated, a wholly-owned subsidiary of Nisshin
Steel Co., Ltd., (Nisshin), and Wheeling-Pittsburgh Corporation
(Wheeling-Pittsburgh), a wholly owned subsidiary of WHX Corporation, owned 64.3%
and 35.7% of the outstanding common stock of the Company, respectively.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and the
disclosure of contingent assets and liabilities at the date of the financial
statements. Estimates also affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Cash and Cash Equivalents:
Cash and cash equivalents consist of general cash accounts and highly
liquid debt instruments with maturities of three months or less when purchased.
Substantially all of the Company's cash and cash equivalents are maintained at
one financial institution. No collateral or other security is provided on these
deposits, other than $100 of deposits insured by the Federal Deposit Insurance
Corporation.
Investments:
Effective January 1, 1996, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 115, "Accounting for Certain Investments in Debt
and Equity Securities." This statement requires that securities be classified as
trading, held-to-maturity, or available-for-sale. The Company's investments,
which consist of certificates of deposit and commercial paper, are classified as
held-to-maturity and are recorded at cost. The certificates of deposit amounted
to $0 and $28,500 at December 31, 1998 and 1997, respectively, and are
maintained at one financial institution. Commercial paper amounted to $48,659
and $0 at December 31, 1998 and 1997, respectively.
Inventories:
Inventories are stated at the lower of cost or market. Cost is determined
by the last-in, first-out (LIFO) method.
Property, Plant and Equipment:
Property, plant and equipment is stated at cost less accumulated
depreciation and amortization.
Major renewals and improvements are charged to the property accounts, while
replacements, maintenance and repairs which do not improve or extend the useful
lives of the respective assets are expensed. Upon disposition or retirement of
property, plant and equipment, the cost and the related accumulated depreciation
or amortization are removed from the accounts. Gains or losses on sales are
reflected in other income.
Depreciation and amortization are provided using the straight-line method
over the estimated useful lives of the assets.
Debt Issuance Costs:
Debt issuance costs associated with long-term debt secured to finance the
construction of the Company's original manufacturing facility and the second
production line were capitalized and are being amortized using the effective
interest method over the term of the related debt.
56
<PAGE> 58
WHEELING-NISSHIN, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
Income Taxes:
The Company uses SFAS No. 109, "Accounting for Income Taxes", to recognize
deferred tax liabilities and assets for the difference between the financial
statement carrying amounts and the tax basis of assets and liabilities using
enacted tax rates in effect in the years in which the differences are expected
to reverse. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount expected to be realized.
Earnings per Share:
In 1997, the Company adopted SFAS No. 128, "Earnings per Share." This
statement requires the disclosure of basic and diluted earnings per share and
revises the method required to calculate these amounts.
Earnings per share is calculated by dividing net income by the weighted
average number of shares of common stock outstanding during each period.
3. INVENTORIES
Inventories consist of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Raw materials............................................... $ 7,576 $ 5,335
Finished goods.............................................. 5,711 10,115
------- -------
$13,287 $15,450
------- -------
LIFO reserve................................................ 510 1,343
------- -------
$13,797 $16,793
======= =======
</TABLE>
During 1998, the Company revised its LIFO valuation approach to valuing
inventories at December 31, 1998. The effect of this change was to decrease
inventories and income before income taxes by approximately $1,593 and net
income by approximately $1,009. Additionally, during 1998, certain inventory
quantities were reduced resulting in a liquidation of LIFO inventories, the
effect of which decreased net income by approximately $102.
4. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consists of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Buildings.................................................. $ 34,674 $ 34,665
Land improvements.......................................... 3,097 3,097
Machinery and equipment.................................... 165,569 164,893
Office equipment........................................... 3,262 3,725
-------- --------
206,602 206,380
Less accumulated depreciation and amortization............. (95,816) (82,625)
-------- --------
110,786 123,755
Land....................................................... 1,002 1,032
-------- --------
$111,788 $124,787
======== ========
</TABLE>
Depreciation expense was $13,191, $12,846 and $12,715 in 1998, 1997, and
1996, respectively.
57
<PAGE> 59
WHEELING-NISSHIN, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
5. LONG-TERM DEBT
Long-term debt consists of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Industrial revenue bonds for the second production line
accruing interest at .625% over the LIBOR rate, as
adjusted for periods ranging from three months to one
year, as elected by the Company. The interest rate on the
bonds was 6.66% at December 31, 1998 and 6.53% at December
31, 1997. The bonds are payable in 17 equal semi-annual
installments of $3,353 plus interest through March 2000... $11,529 $18,235
West Virginia Economic Development Authority (WVEDA) loan
accruing interest at 4%, payable in monthly installments
of $2 including interest through January 2001 was repaid
in 1998................................................... -- 67
Capital lease obligations accruing interest at rates ranging
from 10% to 13.8%, payable in monthly installments through
January 2000.............................................. 70 178
------- -------
11,599 18,480
Less current portion........................................ 6,775 6,835
------- -------
$ 4,824 $11,645
======= =======
</TABLE>
The industrial revenue bonds are collateralized by substantially all
property, plant and equipment and are guaranteed by Nisshin. In addition, the
industrial revenue bonds provide that dividends may not be declared or paid
without the prior written consent of the lender. Such approval was obtained for
the dividends paid in years 1998, 1997 and 1996.
The annual maturities on all long-term debt for each of the five years
ending December 31 are: $6,775 in 1999; $4,824 in 2000; and $0 thereafter.
6. INCOME TAXES
The provision for income taxes for the years ended December 31 consist of:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------ -------
<S> <C> <C> <C>
Current:
U.S. Federal...................................... $10,543 $7,771 $ 7,366
State............................................. 709 523 414
Deferred............................................ 697 1,141 5,330
------- ------ -------
$11,949 $9,435 $13,110
======= ====== =======
</TABLE>
Reconciliation of the federal statutory and effective tax rates for 1998,
1997 and 1996 are as follows:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Federal statutory rate...................................... 35.0% 35.0% 35.0%
State income taxes.......................................... 1.6 1.5 1.2
Other, net.................................................. 0.1 0.5 1.6
---- ---- ----
36.7% 37.0% 37.8%
==== ==== ====
</TABLE>
58
<PAGE> 60
WHEELING-NISSHIN, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
The deferred tax assets and liabilities recorded on the balance sheets as
of December 31 are as follows:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Deferred tax assets:
Accrued expenses.......................................... $ 1,143 $ 1,120
Other..................................................... 1,511 1,222
------- -------
2,654 2,342
------- -------
Deferred tax liabilities:
Depreciation and amortization............................. 22,729 23,781
Other..................................................... 3,542 1,481
------- -------
26,271 25,262
------- -------
$23,617 $22,920
======= =======
</TABLE>
The Company has received two separate tax credits for new business
investment and jobs expansion (Supercredits) in West Virginia. The Supercredits
may only be applied to offset the West Virginia income tax liability generated
by the specific business expansion that created the credit. The first
Supercredit was granted in 1988 and expired in 1997. However, the Company has
approximately $2,500 of credit carryforwards attributed to the 1988 investment
that may be used to offset the company's West Virginia income tax liability for
the three taxable years ended 2000.
The second Supercredit granted in 1993 can be used to offset up to $5,958
annually of West Virginia income tax attributable to the 1993 investment through
the 2002 tax year. A portion on any unused credit may be carried forward for
three taxable years thereafter.
A valuation allowance for the entire amount of the Supercredits has been
recognized in the accompanying financial statements. Accordingly, as the
Supercredits are utilized, a benefit is recognized through a reduction of the
current state income tax provision. Such benefit amounted to approximately
$1,120 in 1998, $876 in 1997 and $1,058 in 1996.
7. EMPLOYEE BENEFIT PLANS
Retirement Plan:
The Company has a noncontributory, defined contribution plan which covers
eligible employees. The plan provides for Company contributions ranging from 2%
to 6% of the participant's annual compensation based on their years of service.
The Company's contribution to the plan was $490 in 1998, $415 in 1997 and $336
in 1996.
Profit-Sharing Plan:
The Company has a nonqualified profit-sharing plan for eligible employees,
providing for cash distributions to the participants in years when income before
income taxes is in excess of $500. These contributions are based on an
escalating scale from 5% to 15% of income before income taxes. The
profit-sharing expense, which includes the profit-sharing contribution and the
related employer payroll taxes, was $6,290 in 1998, $4,644 in 1997 and $6,505 in
1996.
Postretirement Benefits:
In December 1996, the Company adopted a defined benefit postretirement plan
which covers eligible employees. Generally, the plan calls for a stated
percentage of medical expenses reduced by deductibles and other coverages. The
plan is currently unfunded. The postretirement benefit expense was $68 for 1998,
1997 and 1996. Accrued postretirement benefits were approximately $203 and $135
at December 31, 1998 and 1997, respectively.
8. RELATED PARTY TRANSACTIONS:
The Company has an agreement with Wheeling-Pittsburgh under which the
Company has agreed to purchase a specified portion of its required raw materials
through the year 2013. The Company purchased $164,473, $24,533 and $161,380 of
raw materials and processing services from Wheeling-Pittsburgh in 1998, 1997 and
1996,
59
<PAGE> 61
WHEELING-NISSHIN, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
respectively. The amounts due Wheeling-Pittsburgh for such purchases are
included in due to affiliates in the accompanying balance sheets.
The Company sells products to Wheeling-Pittsburgh. Such sales totaled
$1,916, $6,408, and $6,511 in 1998, 1997 and 1996, respectively, of which $228
and $880 remained unpaid at December 31, 1998 and 1997, respectively, and are
included in trade accounts receivable in the accompanying balance sheets. The
Company also sells products to Unimast, Inc., an affiliate of
Wheeling-Pittsburgh. Such sales totaled $333, $435 and $1,537 in 1998, 1997 and
1996, respectively, of which $0 and $10 remained unpaid at December 31, 1998 and
1997, respectively, and were included in trade accounts receivable in the
accompanying balance sheets.
9. LEGAL MATTERS:
The Company is a party to a dispute for final settlement of charges related
to the construction of its second production line. The Company had claims
asserted against it in the amount of approximately $6,900 emerging from civil
actions alleging delays on the project. In connection with the dispute, the
Company filed a separate claim for alleged damages that it had sustained in the
amount of approximately $400.
The claims were litigated in the Court of Common Pleas of Allegheny County,
Pennsylvania, in a jury trial, which commenced on January 5, 1996. A verdict in
the amount of $6,700 plus interest of $1,900 was entered against the Company on
October 2, 1996. After the verdict, the plaintiffs requested the trial court to
award counsel fees in the amount of $2,422 against the Company. The motions for
counsel fees plus interest were granted by the court to the plaintiffs in June
1997.
The Company filed appeals from the judgments to the Superior Court of
Pennsylvania in 1997. Post-judgment interest accrues during the appeal period.
Additionally, the Company has posted a bond approximating $12,000 that will be
held by the court pending the appeals. On December 31, 1998, a three-judge panel
of the Superior Court ruled in favor of the Company's appeals vacating the
October 2, 1996 adverse verdict and the award of counsel fees and remanded the
case for a new trial. The original plaintiffs have requested the Superior Court
hear reargument of the case. The Company has been advised by its Special Counsel
that it has various legal bases for relief, if a new trial were to be held;
however, since litigation is subject to many uncertainties, the Company is
presently unable to predict the outcome of this matter. In 1997, the Company
recorded a liability in the amount of $2,500 related to these matters, which was
capitalized in property, plant and equipment as cost overruns in the
accompanying balance sheets. There is at least a reasonable possibility that the
ultimate resolution of these matters may have a material effect on the Company's
results of operations or cash flows in the year of final determination. Any
portion of the ultimate resolution for interest, penalties and counsel fees will
be charged to results of operations.
10. FAIR VALUE OF FINANCIAL INSTRUMENTS:
The estimated fair values and the methods used to estimate those values are
disclosed below:
Investments:
The fair values of commercial paper and certificates of deposit were
$48,844 and $28,890 at December 31, 1998 and 1997, respectively. These amounts
were determined based on the investment cost plus interest receivable at
December 31, 1998 and 1997.
Long-Term Debt:
Based on borrowing rates currently available to the Company for bank loans
with similar terms and maturities, fair value approximates the carrying value.
60
<PAGE> 62
(a) 3. Exhibits
<TABLE>
<C> <S>
2.1 Confirmation Order of the United States Bankruptcy Court for
the Western District of Pennsylvania, dated December 18,
1990, containing the Amended Joint Plan of Reorganization of
Wheeling-Pittsburgh Steel Corporation, dated October 18,
1990, as modified and approved -- Incorporated herein by
reference to Exhibit 2.1 to WPC's Form 8-K filed December
28, 1990.
2.2 Form of Plan and Agreement of Merger, dated as of July 26,
1994 among WPC, WHX and WHEELING-PITTSBURGH STEEL
CORPORATION Merger Co. -- Incorporated herein by reference
to Exhibit 2.2. to Company's Form S-4 Registration Statement
(No. 33-53591).
3.1 Certificate of Incorporation of the Company -- Incorporated
herein by reference to Exhibit 3.2 to the Company's Form S-4
Registration Statement (No. 33-53591).
3.2 Amended and Restated By-laws of the Company -- Incorporated
herein by reference to Exhibit 3.2 to the 1997 Form 10-K.
4.1 Indenture ("Senior Note Indenture"), between WPC and Bank
One, Columbus, NA, as Trustee -- Incorporated herein by
reference to Exhibit 4.1 to WPC's Form S-4 Registration
Statement (No. 333-43867).
4.2 Term Loan Agreement dated as of November 20, 1997 between
Wheeling-Pittsburgh Corporation and DLJ Capital Funding,
Inc., as syndication agent, and the lenders party
thereto -- Incorporated herein by reference to Exhibit 4.2
to the 1997 Form 10-K.
4.3 Amendment No. 1 to Term Loan Agreement dated as of December
31, 1997 between Wheeling-Pittsburgh Corporation and DLJ
Capital Funding, Inc., as syndication agent, and the Lenders
party thereto -- Incorporated herein by reference to Exhibit
4.3 to the 1997 Form 10-K.
4.4 Second Amended and Restated Credit Agreement dated December
28, 1995, among WPSC, the lenders party thereto, and
Citibank, N.A., as Agent -- Incorporated herein by reference
to Exhibit 10.11 to the 1995 Form 10-K.
4.5 Amendment No. 1 to the Second Amended and Restated Credit
Agreement dated as of December 30, 1996 among WPSC, the
lenders party thereto and Citibank, N.A. as
Agent -- Incorporated herein by reference to Exhibit 10.13
to the 1996 Form 10-K.
4.6 Amendment No. 2 to the Second Amended and Restated Credit
Agreement dated as of June 30, 1997 among WPSC, the lenders
party thereto and Citibank, N.A., as Agent -- Incorporated
herein by reference to Exhibit 4.6 to the 1997 Form 10-K.
4.7 Amendment No. 3 to the Second Amended and Restated Credit
Agreement dated as of September 30, 1997 among WPSC, the
lenders party thereto and Citibank, N.A., as
Agent -- Incorporated herein by reference to Exhibit 4.7 to
the 1997 Form 10-K.
4.8 Amendment No. 4 to the Second Amended and Restated Credit
Agreement dated as of November 19, 1997 among WPSC, the
lenders party thereto and Citibank, N.A., as
Agent -- Incorporated herein by reference to Exhibit 4.8 to
the 1997 Form 10-K.
4.9 Amendment No. 5 to the Second Amended and Restated Credit
Agreement dated as of November 28, 1997 among WPSC, the
lenders party thereto and Citibank, N.A., as Agent
-- Incorporated herein by reference to Exhibit 4.9 to the
1997 Form 10-K.
*4.10 Amendment No. 6 to the Second Amended and Restated Credit
Agreement dated as of September 30, 1998 among WPSC, the
lenders party thereto and Citibank, N.A., as Agent.
*4.11 Credit Agreement dated as of July 30, 1998 among Handy &
Harman, Handy & Harman of Canada, Limited, Handy & Harman
Europe Limited, Rigby-Maryland (Stainless) Limited and
Indiana Tube Danmark A/S and the Initial Lenders, Initial
Issuing Banks and Swing Line Bank named therein and Citicorp
USA, Inc. as collateral agent and administrative agent.
10.1 Form of Key Employee Deferred Compensation
Agreement -- Incorporated herein by reference to Exhibit
10.1 to the 1990 10-K.
10.2 Cooperation Agreement dated February 7, 1984 between the
Company and Nisshin Steel Co., Ltd. -- Incorporated herein
by reference to Exhibit 10.24 to the Company's Form S-1
Registration Statement No. 2-89295 as filed with the
Securities and Exchange Commission on February 7, 1984.
10.3 Close Corporation and Shareholder's Agreement effective as
of March 24, 1994, by and among Dong Yang Tinplate America
Corp., WPC, Nittetsu Shoji American, Inc. and Ohio Coatings
Company -- Incorporated herein by reference to Exhibit 10.3
to the 1997 Form 10-K.
</TABLE>
61
<PAGE> 63
<TABLE>
<C> <S>
10.4 Second Amended and Restated Shareholders Agreement dated as of November 12, 1990 between the Company and
Nisshin Steel Co. Ltd. -- Incorporated herein by reference to Exhibit 10.9 to the 1990 10-K.
10.5 Management Agreement dated as of January 3, 1991 between the Company and WPN Corp. -- Incorporated herein by
reference to Exhibit 10.11 to the 1990 10-K.
10.6 Amendment No. 1 to Management Agreement dated as of January 1, 1993 between the Company and WPN
Corp.-Incorporated herein by reference to Exhibit 10.8 to the Company's Form S-2 Registration Statement filed
February 23, 1993 (the "February Form S-2").
10.7 Amendment No. 2 to Management Agreement dated as of April 11, 1994 between the Company and WPN Corp. --
Incorporated herein by reference to Exhibit 10.9 to the 1994 Form 10-K.
10.8 Amendment No. 3 to Management Agreement dated as of April 1, 1996 between the Company and WPN
Corporation -- Incorporated herein by reference to Exhibit 10.9 to the 1996 Form 10-K.
*10.9 Amendment No. 4 to Management Agreement dated as of April 13, 1998 between the Company and WPN Corporation.
10.10 1991 Incentive and Nonqualified Stock Option Plan of the Company -- Incorporated herein by reference to Exhibit
10.13 to the Company's Form S-2 Registration Statement (No. 33-43139).
10.11 1993 Directors and Non-Employee Officers Stock Option Plan -- Incorporated herein by reference to Exhibit 4.D
to WPC's Form S-8 filed April 8, 1994.
10.12 1997 Directors Stock Option Plan -- Incorporated herein by reference to Exhibit 10.11 to the 1997 Form 10-K.
*10.13 WPN Corp. Stock Option Grant Letter dated July 29, 1993.
10.14 WPN Corp. Stock Option Grant Letter dated August 4, 1997 -- Incorporated herein by reference to Exhibit 10.12
to the 1997 Form 10-K.
10.15 Pooling and Servicing Agreement dated as of August 1, 1994, among Wheeling-Pittsburgh Funding, Inc., WPSC and
Bank One, Columbus, NA -- Incorporated herein by reference to Exhibit 4.13 to the WPC's Form S-1 Registration
Statement dated February 24, 1995.
*10.16 Agreement by and between Handy & Harman and Arnold Nance dated May 1, 1998 (as amended by Amendment No. 1 to
Employment Agreement dated December 21, 1998).
*10.17 Agreement dated as of April 23, 1998 by and between the Company and James G. Bradley.
*10.18 Agreement dated as of April 17, 1998 by and between the Company and Robert D. LeBlanc.
*10.19 Amended and Restated Agreement dated as of December 24, 1998 by and between the Company and Paul J. Mooney.
*21.1 Subsidiaries of Registrant.
*23.1 Consent of PricewaterhouseCoopers LLP
*27. Financial Data Sheet
</TABLE>
- ---------------
* filed herewith.
(b) REPORTS ON FORM 8-K.
NONE
62
<PAGE> 64
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has signed this report by the undersigned,
thereunto duly authorized in the City of New York, State of New York on March
17, 1999.
WHX CORPORATION
<TABLE>
<S> <C>
By /s/ JAMES G. BRADLEY March 18, 1999
- ----------------------------------------------------- -----------------------------------------------------
James G. Bradley, Executive Vice President of WHX Date
Corporation and President and Chief Executive
Officer of Wheeling-Pittsburgh Steel Corporation
(Co-Principal Executive Officer)
By /s/ ROBERT D. LEBLANC March 18, 1999
- ----------------------------------------------------- -----------------------------------------------------
Robert D. LeBlanc, Executive Vice President of WHX Date
Corporation and President and Chief Executive
Officer of Handy & Harman
(Co-Principal Executive Officer)
</TABLE>
POWER OF ATTORNEY
WHX Corporation and each of the undersigned do hereby appoint Ronald LaBow
and Marvin Olshan, and each of them severally, its or his true and lawful
attorney to execute on behalf of WHX Corporation and the undersigned any and all
amendments to this Annual Report on Form 10-K and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission; each of such attorneys shall have the power
to act hereunder with or without the other.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
<TABLE>
<S> <C>
By /s/ ARNOLD G. NANCE March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Arnold G. Nance, Vice President -- Date
Finance (Principal Accounting Officer)
By /s/ RONALD LABOW March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Ronald LaBow, Chairman of the Board Date
By /s/ NEIL D. ARNOLD March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Neil D. Arnold, Director Date
By /s/ PAUL W. BUCHA March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Paul W. Bucha, Director Date
By /s/ ROBERT A. DAVIDOW March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Robert A. Davidow, Vice Chairman Date
By /s/ WILLIAM GOLDSMITH March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
William Goldsmith, Director Date
By /s/ MARVIN L. OLSHAN March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Marvin L. Olshan, Director Date
By /s/ ROBERT D. LEBLANC March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Robert D. LeBlanc, Director & Date
Executive Vice President
(Co-Principal Executive Officer)
By /s/ RAYMOND S. TROUBH March 18, 1999
- ------------------------------------------------- -----------------------------------------------------
Raymond S. Troubh, Director Date
</TABLE>
63
<PAGE> 1
AMENDMENT NO. 6 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 30, 1998
AMENDMENT NO. 6 TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "AMENDMENT") is entered into by WHEELING-PITTSBURGH STEEL CORPORATION, a
Delaware corporation (the "BORROWER"), the banks, financial institutions and
other institutional lenders parties to the Credit Agreement referred to below
(collectively, the "LENDERS") and CITIBANK, N.A., as agent (the "AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, Agent and Issuing Bank have entered into
a Second Amended and Restated Credit Agreement dated as of December 28, 1995 (as
amended, supplemented or otherwise modified through the date hereof, the "CREDIT
AGREEMENT"). Capitalized terms not otherwise defined in this Amendment have the
meanings specified in the Credit Agreement.
(2) The Borrower anticipates that Unimast will receive financing on a
stand-alone basis and will pledge its assets to secure such financing (the
"UNIMAST FINANCING").
(3) The Borrower has requested that the Lenders agree to release
Unimast as a Guarantor under the Guaranty and as a Grantor under the Guarantor
Security Agreement upon the consummation of the Unimast Financing.
(4) The Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4(a), (b) and (c), hereby amended as
follows:
(a) The definition of "Guarantor" in Section 1.1 is amended by deleting
the phrase "PCC, Wheeling Construction or Unimast" and substituting therefor
the phrase "PCC or Wheeling Construction".
(b) The definition of "Unimast" in Section 1.1 is deleted in full.
<PAGE> 2
(c) The definition of "Adjusted EBITDA" in Section 1.1 is amended in
full to read as follows:
"ADJUSTED EBITDA" means, for any person for any period, the EBITDA
for such person PLUS, to the extent included as expense in the
calculation of EBITDA, the pension and other long term
post-retirement/employment benefit charges ("Employee Expenses");
minus cash payments for such Employee Expenses.
(d) Section 5.1 is amended by deleting the amounts set opposite the
following dates and substituting therefor the amount set forth below
opposite each such date:
September 30, 1998 178,800,000
December 31, 1998 174,300,000
March 31, 1999 176,800,000
June 30, 1999 184,900,000
(e) Section 5.2 is amended by deleting the amounts set opposite the
following dates and substituting therefor the amount set forth below
apposite each such date:
September 30, 1998 7.29:1.00
December 31, 1998 7.82:1.00
March 31, 1999 8.00:1.00
June 30, 1999 7.66:1.00
(f) Section 5.3 is amended by deleting the ratios set opposite the
following dates and substituting therefor the word or ratio set forth below
opposite each such date:
September 30, 1998 N/A
December 31, 1998 N/A
March 31, 1999 0.61:1.00
June 30, 1999 0.75:1.00
2
<PAGE> 3
(g) Section 5.4 is amended by deleting the amounts set opposite the
following dates and substituting therefor the amount set forth below
apposite each such date:
September 30, 1998 (130,000,000)
October 31, 1998 (130,100,000)
November 30, 1998 (130,000,000)
December 31, 1998 (130,000,000)
January 31, 1999 (135,000,000)
February 28, 1999 (135,000,000)
March 31, 1999 (140,000,000)
April 30, 1999 (140,000,000)
May 31, 1999 (140,000,000)
June 30, 1999 (140,000,000)
and thereafter
(h) Section 5.5 is amended by deleting the amounts set opposite the
following dates and substituting therefor the amount set forth below
apposite each such date:
September 30, 1998 127,300,000
December 31, 1998 140,700,000
March 31, 1999 151,200,000
June 30, 1999 169,500,000
and thereafter
(i) Section 8.1(k) is deleted in full and inserted in its place is "(k)
[Intentionally deleted]".
SECTION 2. WAIVER. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 4(a) and (b), the
Lenders, notwithstanding anything in the contrary contained in Section 7.5 of
the Credit Agreement, hereby consent to the merger of Champion Metal Products,
Inc. into Wheeling Construction Products, Inc. and subsequent merger of Wheeling
Construction Products, Inc. into Borrower.
SECTION 3. RELEASE. (a) Effective as of the date of the Unimast Loan
Agreement and subject to the satisfaction of the conditions precedent set forth
in Section 4, the Lenders hereby (i) release Unimast as a Guarantor under the
Guaranty, (ii) release Unimast as a Grantor under the Guarantor Security
Agreement and the assets of Unimast from the security
3
<PAGE> 4
interests granted thereby and (iii) release the pledge of the Guarantor
Intercompany Note of Unimast from the Borrower Pledge Agreement.
(b) The Agent agrees that it will, at the Borrower's expense, and upon
the release of the Collateral specified in paragraph (a) of this Section 3,
execute and deliver to the Borrower such documents as the Borrower shall
reasonably request to evidence the release of such item of Collateral from the
assignment and security interest granted under the Guarantor Security Agreement
and Borrower Pledge Agreement, as applicable.
SECTION 4. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written on the Business Day when, and only
when, the following conditions shall have been satisfied:
(a) The Agent shall have received counterparts of this Amendment
executed by the Borrower, each other Loan Party and all of Lenders or, as
to any of the Lenders, advice satisfactory to the Agent that such Lenders
have executed this Amendment;
(b) The Agent shall have received a certificate signed by a duly
authorized officer of the Borrower stating that:
(i) The representations and warranties contained in the Credit
Agreement and each Loan Document are correct on and as of the date of
such certificate as though made on and as of the date hereof other than
any such representations or warranties that, by their terms, refer to a
date other than the date of such certificate; and
(ii) No event has occurred and is continuing that constitutes a
Default or an Event of Default.
(c) The Unimast Financing shall have been consummated.
The effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions of
Section 10.1 of the Credit Agreement.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in each of the Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended by this Amendment.
4
<PAGE> 5
(b) The Credit Agreement and each of the Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender, the Agent, or the Issuing Bank under the Credit
Agreement or any Loan Document, nor constitute a waiver of any provision of the
Credit Agreement or any Loan Document.
SECTION 6. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 10.4(a) of the Credit Agreement.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
5
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER
WHEELING-PITTSBURGH STEEL
CORPORATION
By: /s/ Paul J. Mooney
----------------------------
Name: Paul J. Mooney
Title: Executive Vice President
AGENT
CITIBANK, N.A., as Agent
By: /s/ illegible
----------------------------
Name:
Title:
LENDERS
CITICORP USA, INC.
By: /s/ illegible
----------------------------
Name:
Title:
CORESTATES BANK, N.A.
By: /s/ Myron Landau
---------------------------
Name: Myron Landau
Title: Vice President
6
<PAGE> 7
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/ Walter T. Shellman
--------------------------------
Name: Walter T. Shellman
Title: Vice President
STAR BANK, N.A.
By: /s/ Mike Elbert
--------------------------------
Name: Mike Elbert
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Melba B. Orzon
--------------------------------
Name: Melba B. Orzon
Title: Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By: /s/ John P. Dunn
--------------------------------
Name: John P. Dunn
Title: Vice President
CONSENTED TO AND ACKNOWLEDGED:
WHEELING-PITTSBURGH CORPORATION
By: /s/ Paul J. Mooney
--------------------------------
Name: Paul J. Mooney
Title: Executive Vice President
7
<PAGE> 8
WHEELING CONSTRUCTION PRODUCTS,
INC.
By: /s/ Paul J. Mooney
----------------------------------
Name: Paul J. Mooney
Title: Vice President & Treasurer
PITTSBURGH-CANFIELD CORPORATION
By: /s/ Paul J. Mooney
----------------------------------
Name: Paul J. Mooney
Title: Vice President & Treasurer
UNIMAST INCORPORATED
By: /s/ John W. Testa
--------------------------------
Name: John W. Testa
Title: Secretary
8
<PAGE> 1
EXECUTION COPY
CREDIT AGREEMENT
Dated as of July 30, 1998
Among
HANDY & HARMAN
HANDY & HARMAN OF CANADA, LIMITED
HANDY & HARMAN EUROPE LIMITED
RIGBY-MARYLAND (STAINLESS) LIMITED
and
INDIANA TUBE DANMARK A/S
as Borrowers
and
THE INITIAL LENDERS, INITIAL ISSUING BANKS AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Banks and Swing Line Bank
and
CITICORP USA, INC.
as Collateral Agent
and
CITICORP USA, INC.
as Administrative Agent
<PAGE> 2
T A B L E O F C O N T E N T S
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms..................................................1
1.02. Computation of Time Periods; Other Definitional Provisions............38
1.03. Accounting Terms......................................................38
ARTICLE II
AMOUNTS AND TERMS OF
THE ADVANCES, THE LETTERS OF CREDIT
AND THE BANKERS' ACCEPTANCES
2.01. The Advances and the Letters of Credit................................38
2.02. Making the Advances...................................................41
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit....45
2.04. Drawings of Bankers' Acceptances......................................46
2.05. Repayment of Advances.................................................50
2.06. Termination or Reduction of the Commitments...........................53
2.07. Prepayments...........................................................55
2.08. Interest..............................................................58
2.09. Fees..................................................................61
2.10. Conversion of Advances................................................62
2.11. Renewal and Conversion of Bankers' Acceptances........................63
2.12. Increased Costs, Etc..................................................66
2.13. Payments and Computations.............................................68
2.14. Taxes.................................................................70
2.15. Sharing of Payments, Etc..............................................73
2.16. Use of Proceeds.......................................................74
2.17. Defaulting Lenders....................................................75
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
3.01. Conditions Precedent to Initial Extension of Credit...................78
<PAGE> 3
ii
Section Page
3.02. Conditions Precedent to Initial Borrowing by Danmark..................85
3.03. Conditions Precedent to Each Borrowing, Drawing
and Issuance and Renewal...........................................86
3.04. Determinations Under Section 3.01.....................................87
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers.......................88
ARTICLE V
COVENANTS OF THE BORROWERS
5.01. Affirmative Covenants.................................................95
5.02. Negative Covenants...................................................103
5.03. Reporting Requirements...............................................115
5.04. Financial Covenants..................................................120
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default....................................................125
6.02. Actions in Respect of the Letters of Credit and Bankers'
Acceptances upon Default..........................................128
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. Guaranty.....................................................129
SECTION 7.02. Guaranty Absolute............................................130
SECTION 7.03. Waiver.......................................................131
SECTION 7.04. Continuing Guaranty; Assignments.............................131
SECTION 7.05. Subrogation..................................................131
<PAGE> 4
iii
Section Page
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action.............................................132
8.02. Agents' Reliance, Etc................................................132
8.03. Citicorp and Affiliates..............................................133
8.04. Lender Party Credit Decision.........................................133
8.05. Indemnification......................................................133
8.06. Successor Agents.....................................................135
8.07. Sub-Agents...........................................................136
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc......................................................136
9.02. Notices, Etc.........................................................137
9.03. No Waiver; Remedies..................................................138
9.04. Costs and Expenses...................................................138
9.05. Right of Set-off.....................................................140
9.06. Binding Effect.......................................................140
9.07. Assignments and Participations.......................................141
9.08. Execution in Counterparts............................................144
9.09. No Liability of the Issuing Banks....................................144
9.10. Release of Collateral................................................145
9.11. Jurisdiction, Etc....................................................145
9.13. Judgment.............................................................146
9.14. Governing Law........................................................146
9.15. Substitution of Currency.............................................146
9.16. Waiver of Jury Trial.................................................147
9.17. Power of Attorney....................................................147
<PAGE> 5
iv
Section Page
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Inactive Subsidiaries
Schedule 3.01(a)(ix) - Good Standing Certificates
Schedule 3.01(a)(xix) - Local Counsel
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(q) - Environmental Disclosure
Schedule 4.01(r) - Open Years
Schedule 4.01(t) - Existing Debt
Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Liens
Schedule 4.01(w) - Owned Real Property
Schedule 4.01(x) - Leased Real Property
Schedule 4.01(y) - Investments
Schedule 4.01(z) - Intellectual Property
Schedule 5.02(g) - Precious Metal Inventory
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Delayed Draw Note
Exhibit A-4 - Form of Multicurrency Note
Exhibit A-5 - Form of Revolving Credit Note
Exhibit A-6 - Form of Draft
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Drawing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Domestic Subsidiary Guaranty
Exhibit F - Form of Foreign Subsidiary Guaranty
Exhibit G - Form of Mortgage
Exhibit H - Form of Canadian Security Agreement
Exhibit I-1 - Form of Deed of Charge
Exhibit I-2 - Form of Deed of Charge Over Shares
Exhibit J - Form of Solvency Certificate
Exhibit K - Form of Opinion of Counsel to the Loan Parties
Exhibit L - Form of Opinion of Local Counsel to the Loan Parties
<PAGE> 6
v
Section Page
Exhibit M - Form of Borrowing Base Certificate
Exhibit N - Form of Subordination Agreement
Exhibit O - Form of Intercreditor Agreement
<PAGE> 7
CREDIT AGREEMENT
Dated as of July 30, 1998
Handy & Harman, a New York corporation (the "Company"), Handy
& Harman of Canada, Limited, an Ontario corporation (the "Canadian Borrower"),
Handy & Harman Europe Limited, a limited company incorporated under the laws of
England and Wales ("HHEL"), Rigby-Maryland (Stainless) Limited, a limited
company incorporated under the laws of England and Wales ("Rigby") and Indiana
Tube Danmark A/S, a corporation organized under the laws of Denmark ("Danmark"
and together with the Canadian Borrower, HHEL and Rigby, the "Foreign
Borrowers"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the Initial Lenders (the "Initial
Lenders"), the banks listed on the signature pages hereof as the Initial Issuing
Banks (the "Initial Issuing Banks") and the Swing Line Bank (as hereinafter
defined), Citicorp USA, Inc. ("Citicorp"), as collateral agent (together with
any successor collateral agent appointed pursuant to Article VII, the
"Collateral Agent"), and Citicorp, as administrative agent (together with any
successor administrative agent appointed pursuant to Article VII, the
"Administrative Agent") and, together with the Collateral Agent, the "Agents")
for the Lender Parties (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Adjusted EBITDA" means, for any period, the sum, without
duplication and determined on a Consolidated basis, of (a) EBITDA and
(b) equity advances and capital contributions to the Company or any of
its Subsidiaries not exceeding $8,000,000 in any 12-month period from
WHX Corporation and its Subsidiaries.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means (a) in the case of
Advances denominated in Dollars, the account of the Administrative
Agent maintained by the Administrative Agent at Citibank at its office
at Two Penn's Way, Suite 200, New Castle, Delaware 19720, Account No.
36852248, Attention: Onat Acet, (b) in the case of Advances denominated
in any Foreign Currency, the account of the applicable Sub-Agent
designated in writing from time to time by the Administrative Agent to
the Borrowers and the Lender Parties for such purpose and (c) in any
such case, such other account of the
<PAGE> 8
2
Administrative Agent as is designated in writing from time to time by
the Administrative Agent to the Borrowers and the Lender Parties for
such purpose.
"Advance" means a Term A Advance, a Term B Advance, a Delayed
Draw Advance, a Multicurrency Advance, a Revolving Credit Advance, a
Swing Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or executive officer of such
Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control
with") of a Person means the possession, direct or indirect, of the
power to vote 10% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
"Agreement Value" means, for any Hedge Agreement on any date
of determination, an amount equal to the greater of (a) the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries
as the "settlement amount" as though such Hedge Agreement were
terminated on such date and as though such Loan Party or Subsidiary
were the defaulting party, calculated pursuant to the Master Agreement
(Multi currency - Cross Border), or any successor thereto, published by
the International Swaps and Derivatives Association, Inc. and (b)
mark-to-market, in which the unrealized gain (or loss) on such Hedge
Agreement is calculated as the amount by which the present value of the
future cash flows to be received exceeds (or is less than) the present
value of the future cash flows to be paid pursuant to such Hedge
Agreement.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance, such Lender Party's Eurocurrency Lending Office in
the case of a Eurocurrency Rate Advance, such Lender Party's Local Rate
Lending Office in the case of a Local Rate Advance (other than a Local
Rate Advance denominated in Canadian Dollars) and, in the case of any
Multicurrency Advance denominated in Canadian Dollars, such Lender
Party's Canadian Domestic Lending Office and, in the case of a Drawing,
such Lender Party's BA Lending Office.
"Applicable Margin" means (a) in the case of the Term A
Facility, the Delayed Draw Facility, the Multicurrency Facility, the
Revolving Credit Facility, Letter of Credit
<PAGE> 9
3
fees and Drawing Fees, a percentage per annum determined by reference
to the Total Leverage Ratio as set forth below:
<TABLE>
<CAPTION>
Total Leverage Ratio Base Rate Advances/ Eurocurrency Letter of
Local Rate Advances Rate Credit Fees/
Advances Drawing Fees
==================================================================================================================
<S> <C> <C> <C>
Level 1
greater than or equal to 4.50: 1.50% 2.25% 2.00%
1.0
- ------------------------------------------- --------------------------- ------------------------ -----------------
Level 2
less than 4.50:1.00 but greater 1.25% 2.00% 1.75%
than or equal to 4.00:1.00
- ------------------------------------------- --------------------------- ------------------------ -----------------
Level 3
less than 4.00:1.00 but greater 1.00% 1.75% 1.50%
than or equal to 3.50:1.00
- ------------------------------------------- --------------------------- ------------------------ -----------------
Level 4
less than 3.50:1.00 but greater 0.75% 1.50% 1.25%
than or equal to 3.00:1.00
- ------------------------------------------- --------------------------- ------------------------ -----------------
Level 5
less than 3.00:1.00 but greater 0.50% 1.25% 1.00%
than or equal to 2.50:1.00
- ------------------------------------------- --------------------------- ------------------------ -----------------
Level 6 0.25% 1.00% 0.75%
- -------
less than 2.50:1.00
=========================================== =========================== ======================== =================
</TABLE>
and (b) in the case of the Term B Facility, a percentage per annum
determined by reference to the Total Leverage Ratio as set forth below:
<PAGE> 10
4
<TABLE>
<CAPTION>
Total Leverage Ratio Base Rate Advances Eurocurrency Rate Advances
==================================================================================================================
<S> <C> <C>
Level 1
greater than or equal to 4.50: 2.00% 2.75%
1.0
- ---------------------------------------- ------------------------------- ---------------------------------------
Level 2
less than 4.50:1.00 but greater 1.75% 2.50%
than or equal to 4.00:1.00
- ---------------------------------------- ------------------------------- ---------------------------------------
Level 3
less than 4.00:1.00 but greater 1.50% 2.50%
than or equal to 3.50:1.00
- ---------------------------------------- ------------------------------- ---------------------------------------
Level 4
less than 3.50:1.00 but greater 1.50% 2.25%
than or equal to 3.00:1.00
- ---------------------------------------- ------------------------------- ---------------------------------------
Level 5
less than 3.00:1.00 but greater 1.00% 2.125%
than or equal to 2.50:1.00
- ---------------------------------------- ------------------------------- ---------------------------------------
Level 6 0.75% 2.00%
- -------
less than 2.50:1.00
======================================== =============================== =======================================
</TABLE>
The Applicable Margin for each Advance shall be determined by reference
to the Total Leverage Ratio in effect from time to time; provided,
however, that (A) (x) until the financial statements for the Fiscal
Year ended December 31, 1998 are delivered pursuant to Section 5.02(b),
the Applicable Margin shall be at Level 3 and (y) no change in the
Applicable Margin shall be effective until the first Business Day of
the calendar month commencing immediately after the date on which the
Administrative Agent receives the financial statements required to be
delivered pursuant to Section 5.03(b) or (c), as the case may be, and a
certificate of a Designated Officer of the Company demonstrating the
Total Leverage Ratio and (B) after the Fiscal Year ended December 31,
1998, the Applicable Margin shall be at Level 1 for so long as the
Company has not submitted to the Administrative Agent the information
described in clause (A)(y) of this proviso as and when required under
Section 5.03(b) or (c), as the case may be.
"Applicable Percentage" means a percentage per annum
determined by reference to the Total Leverage Ratio as set forth below:
<PAGE> 11
5
Total Leverage Ratio Applicable Percentage
======================================== ===============================
Level 1
greater than or equal to 4.50: 0.50%
1.0
- ---------------------------------------- -------------------------------
Level 2
less than 4.50:1.00 but greater 0.50%
than or equal to 4.00:1.00
- ---------------------------------------- -------------------------------
Level 3
less than 4.00:1.00 but greater 0.50%
than or equal to 3.50:1.00
- ---------------------------------------- -------------------------------
Level 4
less than 3.50:1.00 but greater 0.375%
than or equal to 3.00:1.00
- ---------------------------------------- -------------------------------
Level 5
less than 3.00:1.00 but greater 0.375%
than or equal to 2.50:1.00
======================================== ===============================
Level 6 0.25%
less than 2.50:1.00
======================================== ===============================
The Applicable Percentage shall be determined by reference to the Total
Leverage Ratio in effect from time to time; provided, however, that (A)
(x) until the financial statements for the Fiscal Year ended December
31, 1998 are delivered pursuant to Section 5.02(b), the Applicable
Percentage shall be at Level 3 and (y) no change in the Applicable
Percentage shall be effective until the first Business Day of the
calendar month commencing immediately after the date on which the
Administrative Agent receives the financial statements required to be
delivered pursuant to Section 5.03(b) or (c), as the case may be, and a
certificate of a Designated Officer of the Company demonstrating the
Total Leverage Ratio and (B) after the Fiscal Year ended December 31,
1998, the Applicable Percentage shall be at Level 1 for so long as the
Company has not submitted to the Administrative Agent the information
described in clause (A)(y) of this proviso as and when required under
Section 5.03(b) or (c), as the case may be.
"Appropriate Lender" means, at any time, with respect to (a)
any of the Term A Facility, Term B Facility, Delayed Draw Facility,
Multicurrency Facility or Revolving Credit Facility, a Lender that has
a Commitment with respect to such Facility at such time,
<PAGE> 12
6
(b) the Letter of Credit Facility, (i) any Issuing Bank and (ii) if the
other Revolving Credit Lenders have made Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at such time, each
such other Revolving Credit Lender and (c) the Swing Line Facility, (i)
the Swing Line Bank and (ii) if the other Revolving Credit Lenders have
made Swing Line Advances pursuant to Section 2.02(b) that are
outstanding at such time, each such other Revolving Credit Lender.
"Arranger" means Citicorp Securities, Inc.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"BA Lending Office" means, with respect to each Multicurrency
Lender, the office of such Lender set forth as its "BA Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender or such other office of
such Lender in Canada as such Lender may from time to time specify to
the Canadian Borrower and the Administrative Agent for such purpose.
"BA Rate" means, for all Bankers' Acceptances comprising part
of the same Drawing, the average rate (calculated on an annual basis of
a year of 365 days and rounded up to the nearest multiple of 1/4 of 1%,
if such average is not such a multiple) for Canadian Dollar Bankers'
Acceptances having a comparable term that appears on the Reuters Screen
CDOR Page (or such other page as is a replacement page for such
bankers' acceptances) at 10:00 A.M. (Toronto time) or, if such rate is
not available at such time, the applicable discount rate in respect of
such Bankers' Acceptances shall be the discount rate (calculated on an
annual basis of a year of 365 days) and rounded up to the nearest
multiple of 1/4 of 1%, quoted by the Canadian Reference Lender at 9:30
a.m. (Toronto time) on the date of such Drawing as the discount rate at
which the Canadian Reference Lender would purchase, on such date, its
own bankers' acceptances having an aggregate Face Amount equal to and
with a term to maturity the same as the Bankers' Acceptances to be
acquired by the Canadian Reference Lender as part of such Drawing. The
BA Rate for each Bankers' Acceptance comprising part of the same
Drawing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent
from the Canadian Reference Lender on the date of the applicable
Drawing, subject, however, to the provisions of Section 2.08.
<PAGE> 13
7
"Banker's Acceptance" has the meaning specified in Section
2.01(h).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.08(a)(i).
"Borrower" means any of the Company or any Foreign Borrower.
"Borrower's Account" means (a) with respect to the Company,
the account of the Company maintained by the Company with The Bank of
New York at its office at 101
<PAGE> 14
8
Barclay Street, New York, New York, Account No. 823-0037-036, (b) with
respect to the Canadian Borrower, the account of such Borrower
maintained by such Borrower with The Bank of Nova Scotia at its office
in Toronto, Ontario, Canada, Account No. 85761- 14, (c) with respect to
HHEL, the account of such Borrower maintained by such Borrower with
Barclays Bank PLC at its office at Business Center, 51 Mosley Street,
Manchester, England, Account No. 20553410231827, (d) with respect to
Rigby, the account of such Borrower maintained by such Borrower with
Den Danske Bank at its office at 6000 Koding, Account No. 3211205148,
and (e) with respect to Danmark, the account of such Borrower
maintained by such Borrower with _______________ at its office at
____________________, New York, New York _____, Account No. __________,
or, in any case, such other account as such Borrower shall specify in
writing to the Administrative Agent.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a
Delayed Draw Borrowing, a Multicurrency Borrowing, a Revolving Credit
Borrowing or a Swing Line Borrowing.
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit M hereto, duly certified by a
Designated Officer of the Company.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks
are open for business in London and in the country of issue of the
currency of such Eurocurrency Rate Advance (or, in the case of an
Advance denominated in the euro, in Frankfurt, Germany), if the
applicable Business Day relates to any Local Rate Advances, on which
banks are open for business in the country of issue of the currency of
such Local Rate Advance and, if the applicable Business Day relates to
Bankers' Acceptances, on which banks are open for business in Toronto,
Ontario, Canada.
"Canadian Cash Collateral Account" has the meaning specified
in the Canadian Security Agreement.
"Canadian Dollars" and the "CN$" sign each means the lawful
currency of Canada.
"Canadian Domestic Lending Office" means, with respect to any
Multicurrency Lender, the office of such Lender specified as its
"Canadian Domestic Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became
a Lender, as the case may be, or such other office of such Lender in
<PAGE> 15
9
Canada as such Lender may from time to time specify to the Canadian
Borrower and the Administrative Agent.
"Canadian Prime Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate (rounded upward to the nearest whole
multiple of 1/4 of 1% per annum), which the principal office
of the Canadian Reference Lender in Toronto, Ontario announces
publicly from time to time as its prime rate for determining
rates of interest on commercial loans in Canadian Dollars made
by it in Canada; and
(b) 3/4 of 1% per annum above the rate quoted for
30-day Canadian Dollar bankers' acceptances of Citibank Canada
that appears on the Reuters Screen CDOR Page (or any
replacement page) as of 10:00 a.m. (Toronto, Ontario time) on
the date of determination.
"Canadian Prime Rate Advance" means a Multicurrency Advance
made in Canadian Dollars that bears interest as provided in Section
2.08(a)(iii).
"Canadian Reference Lender" means Citibank Canada; provided
that, if the foregoing shall cease to be a Multicurrency Lender, the
term "Canadian Reference Lender" shall no longer include such
Multicurrency Lender and shall thereafter include such Canadian Lender
as the Agent shall designate as a replacement Canadian Reference
Lender, which designation shall be made with the consent of such
replacement Canadian Reference Lender and the Canadian Borrower, which
consent shall not be unreasonably withheld or delayed and provided
further that if any Multicurrency Lenders are banks set forth in
Schedule I of the Bank Act (Canada), the Canadian Reference Lender will
be such a Schedule I bank.
"Canadian Security Agreement" has the meaning specified in
Section 3.01(a)(v).
"Capital Expenditures" means, for any Person for any period,
the sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures, but not including interest capitalized during
construction or any Investments permitted
<PAGE> 16
10
pursuant to Section 5.02(f) related to acquisitions. For purposes of
this definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to
the extent of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment being traded
in at such time or the amount of such insurance proceeds, as the case
may be.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the
Security Agreement.
"Cash Equivalents" means any of the following, to the extent
owned by the Company or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than one year from the date of
issuance thereof: (a) direct obligations of the Government of the
United States or the United Kingdom or any agency or instrumentality
thereof or obligations unconditionally guaranteed or insured by the
full faith and credit of the Government of the United States or the
United Kingdom, (b) certificates of deposit of, time deposits with or
bankers' acceptances of, any commercial bank that is a Lender Party or
a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c) below, is
organized or licensed under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion,
(c) commercial paper in an aggregate amount of no more than $5,000,000
per issuer outstanding at any time, issued by any corporation organized
under the laws of any State of the United States or the laws of the
United Kingdom and rated at least "Prime-1" (or the then equivalent
grade) by Moody's Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Ratings Service, a division of
The McGraw-Hill Companies, Inc., (d) repurchase obligations with a term
of not more than thirty days for underlying securities of the type
described in clauses (a) and (b) above entered into with any financial
institution meeting the qualifications specified in clause (b) above,
in an aggregate amount of no more than $5,000,000 at any one time
outstanding and (e) money market mutual funds substantially all of the
assets of which are invested primarily in assets of the types described
in clauses (a) through (d) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
<PAGE> 17
11
"Change of Control" means the occurrence of any of the
following: (a) WHX Corporation and any of its wholly-owned Subsidiaries
shall have ceased to own beneficial ownership of Voting Stock of the
Company representing 60% of the combined voting power of all Voting
Stock of the Company; or (b) during any period of up to 24 consecutive
months, commencing after the date of this Agreement, individuals who at
the beginning of such 24-month period were directors of the Company
shall cease, without the consent of WHX Corporation, to constitute a
majority of the board of directors of the Company; or (c) any Person or
two or more Persons acting in concert other than WHX Corporation shall
have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of control over Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 40% or more
of the combined voting power of all Voting Stock of the Company.
"Citibank" means Citibank, N.A.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Canadian Security Agreement, the Mortgages, the Deed of Charge, the
Deed of Charge over Shares and any other agreement that creates or
purports to create a Lien in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Commitment" means a Term A Commitment, a Term B Commitment, a
Delayed Draw Commitment, a Multicurrency Commitment, a Revolving Credit
Commitment or a Letter of Credit Commitment.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
<PAGE> 18
12
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is
required to perform thereunder), as determined by such Person in good
faith.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08(d), 2.10 or 2.12.
"Conversion Date" means July 30, 2000.
"Danmark Effective Date" has the meaning specified in Section
3.02.
"Debt" of any Person means, without duplication (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest in such Person
or any other Person or any warrants, rights or options to acquire such
capital stock, valued, in the case of Redeemable Preferred Stock, at
the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements,
<PAGE> 19
13
valued at the Agreement Value thereof, (i) all Obligations contingent
or otherwise, of such Person for production payments from property
operated by or on behalf of such person and other similar arrangements
with respect to natural resources, (j) all Contingent Obligations of
such Person and (k) all indebtedness and other payment Obligations
referred to in clauses (a) through (j) above of another Person secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such indebtedness or other payment Obligations;
provided that "Debt" shall not include Obligations under the Precious
Metals Leasing.
"Debt for Borrowed Money" of any Person means all items that,
in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Deed of Charge over Shares" has the meaning specified in
Section 3.01(a)(vi).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to any Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.17(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of a Swing Line Advance made by the Swing
Line Bank, (b) any Issuing Bank pursuant to Section 2.03(c) to purchase
a portion of a Letter of Credit Advance made by such Issuing Bank, (c)
the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any
other Lender Party pursuant to Section 2.15 to purchase any
participation in Advances owing to such other Lender Party
<PAGE> 20
14
and (e) any Agent or any Issuing Bank pursuant to Section 8.05 to
reimburse such Agent or such Issuing Bank for such Lender Party's
ratable share of any amount required to be paid by the Lender Parties
to such Agent or such Issuing Bank as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.17(b), the remaining portion of such Defaulted Amount shall
be considered a Defaulted Amount originally required to be paid
hereunder or under any other Loan Document on the same date as the
Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Default Termination Notice" has the meaning specified in
Section 2.01(g).
"Delayed Draw Advance" has the meaning specified in Section
2.01(c).
"Delayed Draw Borrowing" means a borrowing consisting of
simultaneous Delayed Draw Advances of the same Type made by the Delayed
Draw Lenders.
"Delayed Draw Commitment" means, with respect to any Delayed
Draw Lender at any time, the Dollar amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Delayed Draw
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Delayed Draw Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Delayed Draw Facility" means, at any time, the aggregate
amount of the Delayed Draw Lenders' Delayed Draw Commitments at such
time.
"Delayed Draw Lender" means any Lender that has a Delayed Draw
Commitment.
"Delayed Draw Note" means a promissory note of the Company
payable to the order of any Delayed Draw Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the indebtedness of the Company
to such Lender resulting from the Delayed Draw Advance made by such
Lender, as amended.
"Delayed Draw Reduction Amount" has the meaning specified in
Section 2.07(b)(ix).
<PAGE> 21
15
"Designated Officer" means the Chief Financial Officer,
Controller, Treasurer or any other officer designated by the Company
from time to time to the Administrative Agent as authorized to deliver
the Borrowing Base Certificate or to otherwise provide certifications
required hereunder.
"Dollars" and the "$" sign each means lawful currency of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Company and the
Administrative Agent.
"Domestic Subsidiary" means any Subsidiary other than a
Foreign Subsidiary.
"Domestic Subsidiary Guarantors" means all wholly-owned
Domestic Subsidiaries of the Company (other than any Inactive
Subsidiary) and each other Domestic Subsidiary of the Company that
shall be required to execute and deliver a guaranty pursuant to Section
5.01(j).
"Domestic Subsidiary Guaranty" has the meaning specified in
Section 3.01(a)(iii).
"Draft" means a blank bill of exchange, within the meaning of
the Bills of Exchange Act (Canada), drawn by the Canadian Borrower on
any Multicurrency Lender, in substantially the form of Exhibit A-6, and
which, except as otherwise provided herein, has not been completed or
accepted by such Lender.
"Drawing" means the simultaneous acceptance of Drafts and
purchase of Bankers' Acceptances by the Multicurrency Lenders, in
accordance with Section 2.04(a).
"Drawing Fee" means, with respect to each Bankers' Acceptance,
an amount equal to (a) the Applicable Percentage in effect on the date
of the Drawing or renewal, as the case may be, of such Bankers'
Acceptance multiplied by (b) the Face Amount of such Bankers'
Acceptance, calculated on the basis of the term to maturity of such
Bankers' Acceptance and a year of 365 days.
"Drawing Purchase Price" means, with respect to each Bankers'
Acceptance to be purchased and/or accepted by any Multicurrency Lender
at any time, the amount (adjusted to the nearest whole cent or, if
there is no nearest whole cent, the next higher whole cent)
<PAGE> 22
16
obtained by dividing (a) the aggregate Face Amount of such Bankers'
Acceptance, by (b) the sum of (i) one and (ii) the product of (A) the
BA Rate in effect at such time (expressed as a decimal fraction)
multiplied by (B) a fraction the numerator of which is the number of
days in the term to maturity of such Bankers' Acceptance and the
denominator of which is 365 days.
"EBITDA" means, for any period, the sum, without duplication
and determined on a Consolidated basis, of (a) net income (or net
loss), (b) interest expense, (c) income tax expense, (d) depreciation
expense, (e) amortization expense, (f) lease expense under the Precious
Metals Leasing, (g) extraordinary, unusual or nonrecurring (including
change of control charges) losses deducted in calculating net income,
(h) any increase in the long term liability in respect of other
post-retirement benefit or pension benefit to the extent included in
the calculation of net income ("Employee Liability"), (i) any decrease
in pension asset to the extent included in the calculation of net
income ("Pension Asset") and (j) other non-cash charges (including
without limitation, the lower of cost or market adjustment with respect
to Precious Metal Inventory) less (i) interest income, (ii) income tax
credit, (iii) extraordinary, unusual or nonrecurring gains included in
calculating net income and (iv) any decrease in the Employee Liability;
and (v) any increase in the Pension Asset, in each case of the Company
and its Subsidiaries, determined in accordance with GAAP for such
period.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in
excess of $3,000,000,000; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $3,000,000,000; (v)
a commercial bank organized under the laws of any other country that is
a member of the OECD or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country,
and having total assets in excess of $5,000,000,000, so long as such
bank is acting through a branch or agency located in the country in
which it is organized or another country that is described in this
clause (v); (vi) the central bank of any country that is a member of
the OECD; (vii) with respect to any Lender that is a fund that invests
in bank loans, any other fund or trust or entity that invests in bank
loans and is advised or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor; and (viii) any
other Person regularly engaged in the business of investing in bank
loans and approved by the Administrative Agent and, unless a Default
has occurred and is continuing at the time any assignment is effected
pursuant to Section 9.07, the Company, such approval not to be
unreasonably withheld or delayed, and (b) with respect to the Letter of
Credit Facility, a Person that is an Eligible Assignee under subclause
(iii) or (v) of clause (a) of this definition and is
<PAGE> 23
17
approved by the Administrative Agent and, unless a Default has occurred
and is continuing at the time any assignment is effected pursuant to
Section 9.07, the Company, such approval not to be unreasonably
withheld or delayed; provided, however, that neither any Loan Party nor
any Affiliate of a Loan Party shall qualify as an Eligible Assignee
under this definition.
"Eligible Collateral" means, collectively, Eligible Inventory
and Eligible Receivables.
"Eligible Inventory" means only such Inventory of the Loan
Parties as the Administrative Agent, in its reasonable discretion
consistent with its customary business practices and generally
applicable criteria for comparable secured financings, shall from time
to time elect to consider Eligible Inventory for purposes of this
Agreement. The value of such Inventory shall be determined by the
Administrative Agent in its reasonable discretion consistent with its
customary business practices and generally applicable criteria for
comparable secured financings, taking into consideration, among other
factors, the lower of its cost and its market value determined in
accordance with GAAP and, in the case of Precious Metal Inventory,
market value.
"Eligible Receivables" means only such Receivables of the Loan
Parties as the Administrative Agent, in its reasonable discretion
consistent with its customary business practices and generally
applicable criteria for comparable secured financings, shall from time
to time elect to consider Eligible Receivables for purposes of this
Agreement. The value of such Receivables shall be determined by the
Administrative Agent in its reasonable discretion consistent with its
customary business practices and generally applicable criteria for
comparable secured financings, taking into consideration, among other
factors, their book value determined in accordance with GAAP.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the
<PAGE> 24
18
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date
means the equivalent in Dollars of such Foreign Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043(c) of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived or extended by the PBGC or (ii) the requirements
of Section 4043(b) of ERISA apply with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any Loan Party or any
ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in
<PAGE> 25
19
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
such Plan.
"Eurocurrency Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto or
in the Assignment and Acceptance pursuant to which it became a Lender
Party (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender Party as such Lender Party
may from time to time specify to the Borrowers and the Administrative
Agent.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars or the relevant Foreign
Currencies are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such Reference
Bank's Eurocurrency Rate Advance comprising part of such Borrowing to
be outstanding during such Interest Period (or, if such Reference Bank
shall not have such a Eurocurrency Rate Advance, $1,000,000) and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. The Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing shall
be determined by the Administrative Agent on the basis of applicable
rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means an Advance that bears
interest as provided in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances comprising part of the same
Borrowing means the reserve
<PAGE> 26
20
percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New
York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurocurrency Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period, Consolidated EBITDA
minus (a) cash Capital Expenditures, (b) non-deferred income tax
expense, (c) cash interest payable on all Debt for Borrowed Money (net
of cash interest income), (d) payments under Precious Metals Leasing
other than for the acquisition of metals and (e) scheduled principal
amounts of all Debt for Borrowed Money actually paid, in each case, of
or by the Company and its Subsidiaries during such period.
"Existing Debt" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before but not immediately after
giving effect to the consummation of the transactions contemplated by
the Transaction Documents.
"Face Amount" means, with respect to any Bankers' Acceptance,
the amount payable to the holder of such Bankers' Acceptance on its
then existing Maturity Date.
"Facility" means the Term A Facility, the Term B Facility, the
Delayed Draw Facility, the Multicurrency Facility, the Revolving Credit
Facility, the Swing Line Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Final Maturity Date" means July 30, 2006.
<PAGE> 27
21
"Fiscal Year" means a fiscal year of the Company and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Deed of Charge" has the meaning specified in Section
3.01(a)(vi).
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (a) Consolidated Adjusted EBITDA minus
Capital Expenditures to (b) the sum of (i) cash interest expense on all
Debt for Borrowed Money (net of cash interest income) plus (ii)
payments under the Precious Metals Leasing other than for the
acquisition of metals plus (iii) scheduled principal amounts of all
Debt for Borrowed Money actually paid, in each case, of or by the
Company and its Subsidiaries during the four consecutive fiscal
quarters most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be.
"Foreign Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Foreign Currency" means the lawful currency of Canada, the
lawful currency of the United Kingdom, the lawful currency of the
Kingdom of Denmark, the lawful currency of the European Economic and
Monetary Union and such other lawful currencies that are freely
transferable or convertible into Dollars as may be agreed by all of the
Multicurrency Lenders from time to time.
"Foreign Subsidiary" means a Subsidiary organized under the
laws of a jurisdiction other than the United States or any State
thereof.
"Foreign Subsidiary Guarantors" means all Foreign Subsidiaries
of the Company (other than Electro-Connection Finishers, Danmark and
any Inactive Subsidiary) and each other Foreign Subsidiary of the
Company that shall be required to execute and deliver a guaranty
pursuant to Section 5.01(j).
"Foreign Subsidiary Guaranty" has the meaning specified in
Section 3.01(a)(iii).
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Guaranties" means the Domestic Subsidiary Guaranty and the
Foreign Subsidiary Guaranty.
<PAGE> 28
22
"Guarantors" means the Domestic Subsidiary Guarantors and the
Foreign Subsidiary Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity future or
option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a
Lender Party in its capacity as a party to a Secured Hedge Agreement.
"Inactive Subsidiary" means any Subsidiary listed on Schedule
II and any other direct or indirect Subsidiary of the Company with
assets less than $2,500,000 as may be certified from time to time by a
Designated Officer of the Company to the Administrative Agent.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Information Memorandum" means the prospectus dated May 14,
1998 used by WHX Corporation in connection with the offer to exchange
its 10-1/2% Senior Exchange Notes Due 2005 for its 10-1/2% Senior Notes
Due 2005.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Banks" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intercreditor Agreement" means an Intercreditor Agreement
substantially in the form of Exhibit O hereto between WHX Corporation
or its Subsidiary, Fleet Precious
<PAGE> 29
23
Metals Inc. and the Administrative Agent, as amended from time to time
in accordance with this Agreement.
"Interest Coverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated Adjusted EBITDA to (b) cash interest
payable on all Debt for Borrowed Money and payments under the Precious
Metals Leasing other than for the acquisition of metals, in each case,
of or by the Company and its Subsidiaries during the four consecutive
fiscal quarters most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurocurrency Rate Advance, and ending
on the last day of the period selected by the applicable Borrower
pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as such
Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(a) no Borrower may select any Interest Period with
respect to any Eurocurrency Rate Advance under a Facility that
ends after any principal repayment installment date for such
Facility unless, after giving effect to such selection, the
aggregate principal amount of Base Rate Advances, Local Rate
Advances and of Eurocurrency Rate Advances having Interest
Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to
the aggregate principal amount of Advances under such Facility
due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
<PAGE> 30
24
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities or the assets comprising a division or business unit
or a substantial part or all of the business of such Person, any
capital contribution to such Person or any other direct or indirect
investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement
pursuant to which the investor incurs Debt of the types referred to in
clause (j) or (k) of the definition of "Debt" in respect of such
Person.
"Issuing Banks" means each Initial Issuing Bank and any other
Revolving Credit Lender approved as an Issuing Bank by the
Administrative Agent and any Eligible Assignee to which a Letter of
Credit Commitment hereunder has been assigned pursuant to Section 9.07
so long as each such Revolving Credit Lender or each such Eligible
Assignee expressly agrees to perform in accordance with their terms all
of the obligations that by the terms of this Agreement are required to
be performed by it as an Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register).
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.05(h)(ii).
"Lender Party" means any Lender, any Issuing Bank or the Swing
Line Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
<PAGE> 31
25
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to any
Issuing Bank at any time, the Dollar amount set forth opposite such
Issuing Bank's name on Schedule I hereto under the caption "Letter of
Credit Commitment" or, if such Issuing Bank has entered into one or
more Assignment and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.06.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $30,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.06.
"Letters of Credit" has the meaning specified in Section
2.01(g).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other similar type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment, supplement or modification hereof or
thereof, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv)
the Collateral Documents and (v) each Letter of Credit Agreement and
(b) for purposes of the Guaranties and the Collateral Documents and for
all other purposes other than for purposes of this Agreement and the
Notes, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv)
the Collateral Documents, (v) each Letter of Credit Agreement and (vi)
each Secured Hedge Agreement, in each case as amended.
"Loan Parties" means the Borrowers and the Guarantors.
"Loan Value" means, with respect to any Eligible Collateral,
an amount equal to a percentage of the value of any item of Eligible
Collateral determined by the Administrative Agent in its reasonable
discretion consistent with its customary business practices and
generally applicable criteria for comparable secured financings. By way
of example only, and without limiting the discretion of the
Administrative Agent to determine any such
<PAGE> 32
26
percentage to be applicable, the Administrative Agent may determine to
apply, with respect to all Eligible Collateral, the sum of up to the
following amounts and, with respect to a particular category of
Eligible Collateral, up to the following amount for such category of
Eligible Collateral: (a) with respect to Eligible Receivables, up to
85% of the value of Eligible Receivables; (b) with respect to Eligible
Inventory (other than Precious Metal Eligible Inventory), up to 55% of
the value of such Eligible Inventory; and (c) with respect to Precious
Metal Eligible Inventory, up to 80% of the value of such Precious Metal
Eligible Inventory.
"Local Rate" means (a) with respect to any Multicurrency
Advance denominated in any Foreign Currency (other than Canadian
Dollars), the rate of interest from time to time publicly announced by
Citibank in the jurisdiction of issuance of such Foreign Currency as
its base rate (or its equivalent thereof) for loans denominated in such
Foreign Currency at the principal lending office of Citibank in the
jurisdiction of issuance of such Foreign Currency, and (b) with respect
to any Multicurrency Advance denominated in Canadian Dollars, the
Canadian Prime Rate.
"Local Rate Advance" shall mean each Multicurrency Advance
hereunder at such time as it is made or being maintained at a rate of
interest based upon the Local Rate for the relevant Foreign Currency.
"Local Rate Lending Office" means, with respect to any
Multicurrency Lender for any Foreign Currency (other than Canadian
Dollars) the office of such Lender specified by such Lender to the
Borrowers and the Administrative Agent from time to time for such
Foreign Currency and, in the case of any Multicurrency Lender for
Canadian Dollars, such Lender's Canadian Domestic Lending Office.
"Management Agreement" means the Management Agreement dated as
of April 13, 1998 between the Company and WHX Corporation or its
Affiliates, as amended from time to time to the extent permitted under
the Loan Documents.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Company and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Company and its
Subsidiaries, taken as a whole, (b) the rights and remedies of any
Agent or any Lender Party under any Transaction Document or (c) the
ability of any Loan Party
<PAGE> 33
27
to perform its Obligations under any Transaction Document to which it
is or is to be a party.
"Maturity Date" means, for each Bankers' Acceptance comprising
part of the same Drawing, the date on which the Face Amount of such
Bankers' Acceptance becomes due and payable in accordance with the
provisions set forth below, which shall be a Business Day occurring
one, two or three months or, if available to all Multicurrency Lenders
purchasing Bankers' Acceptances in connection with the applicable
Drawing, six months after the date on which such Bankers' Acceptance is
purchased and/or accepted as part of any Drawing, as the Canadian
Borrower may select upon notice received by the Administrative Agent
not later than 10:00 a.m. (New York City time) on a Business Day at
least three Business Days prior to the date on which such Bankers'
Acceptance is to be accepted and purchased (whether as a new Drawing,
by renewal or by Conversion); provided, however, that:
(a) such Borrower may not select any Maturity Date
for any Bankers' Acceptance that occurs after the scheduled
Termination Date;
(b) the Maturity Date for all Bankers' Acceptances
comprising part of the same Drawing shall occur on the same
date; and
(c) whenever the Maturity Date for any Bankers'
Acceptance would otherwise occur on a day other than a
Business Day, such Maturity Date shall be extended to occur on
the next succeeding Business Day.
"Mortgages" has the meaning specified in Section 3.01(a)(iv).
"Mortgage Policies" has the meaning specified in Section
3.01(a)(iv)(B).
"Multicurrency Advance" has the meaning specified in Section
2.01(d).
"Multicurrency Borrowing" means a borrowing consisting of
simultaneous Multicurrency Advances in the same currency of the same
Type made by the Multicurrency Lenders.
"Multicurrency Commitment" means, with respect to any
Multicurrency Lender at any time, the Dollar amount set forth opposite
such Lender's name on Schedule I hereto under the caption
"Multicurrency Commitment" or, if such Lender has entered into one or
more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender's "Multicurrency
<PAGE> 34
28
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"Multicurrency Facility" means, at any time, the aggregate
amount of the Multicurrency Lenders' Multicurrency Commitments at such
time.
"Multicurrency Lender" means any Lender that has a
Multicurrency Commitment and a Revolving Credit Commitment.
"Multicurrency Note" means a promissory note of the Company
payable to the order of any Multicurrency Lender, in substantially the
form of Exhibit A-4 hereto, evidencing the aggregate indebtedness of
the Company to such Lender resulting from the Multicurrency Advances
made by such Lender, as amended.
"Multicurrency Reduction Amount" has the meaning specified in
Section 2.07(b)(xi).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest
(including, without limitation, any capital contribution), any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person, the aggregate amount of cash received from time
to time (whether as initial consideration or through payment or
disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only
(without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees
and other similar fees and commissions, (b) the amount of taxes payable
in connection with or as a result of such transaction (including
payments required under the Tax Agreement) and
<PAGE> 35
29
(c) the amount of any Debt secured by a Lien on such asset that, by the
terms of the agreement or instrument governing such Debt, is required
to be repaid upon such disposition, in each case to the extent, but
only to the extent, that the amounts so deducted are, at the time of
receipt of such cash, actually paid to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any Loan
Party and are properly attributable to such transaction or to the asset
that is the subject thereof; provided, however, that in the case of
taxes that are deductible under clause (b) above but for the fact that,
at the time of receipt of such cash, such taxes have not been actually
paid or are not then payable, such Loan Party or such Subsidiary may
deduct an amount (the "Reserved Amount") equal to the amount reserved
in accordance with GAAP for such Loan Party's or such Subsidiary's
reasonable estimate of such taxes, other than taxes for which such Loan
Party or such Subsidiary is indemnified, provided further, however,
that, at the time such taxes are paid, an amount equal to the amount,
if any, by which the Reserved Amount for such taxes exceeds the amount
of such taxes actually paid shall constitute "Net Cash Proceeds" of the
type for which such taxes were reserved for all purposes hereunder.
"Note" means a Term A Note, a Term B Note, a Delayed Draw
Note, a Multicurrency Note or a Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Drawing" has the meaning specified in Section
2.04(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(g).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(g).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any
<PAGE> 36
30
Loan Party under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its reasonable discretion,
may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(r)(ii).
"Other Taxes" has the meaning specified in Section 2.14(b).
"Payment Office" means, for any Foreign Currency, such office
of Citibank as shall be from time to time selected by the
Administrative Agent and notified by the Administrative Agent to the
Borrowers and the Lender Parties.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" has the meaning specified in the
Mortgages.
"Permitted Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days; (c)
pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; and (d) Permitted Encumbrances.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledged Debt" has the meaning specified in the Security
Agreement.
"Precious Metal Eligible Inventory" means Eligible Inventory
consisting of any precious metals including, without limitation, gold,
silver, palladium and platinum group metals.
<PAGE> 37
31
"Precious Metal Inventory" means Inventory consisting of any
precious metals including, without limitation, gold, silver, palladium
and platinum group metals.
"Precious Metals Leasing" means a precious metals leasing or
other facility designed to provide the Company or any of its
Subsidiaries with precious metals to be used in its business
operations.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.06 or
6.01, such Lender's Revolving Credit Commitment as in effect
immediately prior to such termination) and the denominator of which is
the Revolving Credit Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.06 or 6.01, the
Revolving Credit Facility as in effect immediately prior to such
termination).
"Receivables" means all Receivables referred to in Section
1(c) of the Security Agreement.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
"Reduction Amount" has the meaning specified in Section
2.07(b)(viii).
"Reference Banks" means Citibank and such other Lenders as
shall be appointed from time to time by the Company with the consent of
the Administrative Agent.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
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32
"Related Documents" means the Management Agreement, any
intercompany notes issued pursuant to Section 5.02(b)(ii), the Tax
Agreement and the Intercreditor Agreement.
"Required Lenders" means, at any time, Lenders (voting as a
single class) owed or holding at least a majority in interest of the
sum of (a) the aggregate principal amount (based, in the case of
Multicurrency Advances, on the Equivalent in Dollars at such time) of
the Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused Commitments under the Delayed Draw Facility at such
time, (d) the aggregate Unused Revolving Credit Commitments at such
time and (e) the aggregate Unused Multicurrency Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (A) the aggregate principal amount
(based, in the case of Multicurrency Advances, on the Equivalent in
Dollars at such time) of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time, (B) such Lender's
Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (C) the aggregate unused Term A
Commitments, Term B Commitments, Delayed Draw Commitments and
Multicurrency Commitments of such Lender at such time and (D) the
Unused Revolving Credit Commitment of such Lender at such time. For
purposes of this definition, the aggregate principal amount of Swing
Line Advances owing to the Swing Line Bank and of Letter of Credit
Advances owing to any Issuing Bank and the Available Amount of each
Letter of Credit shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"Responsible Officer" means any officer of any Loan Party.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(e).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the Dollar amount set forth
opposite such Lender's name on Schedule I hereto under the caption
"Revolving Credit Commitment" or, if such Lender has entered into one
or more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender's "Revolving Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.06.
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33
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment.
"Revolving Credit Note" means a promissory note of the Company
payable to the order of any Revolving Credit Lender, in substantially
the form of Exhibit A-5 hereto, evidencing the aggregate indebtedness
of the Company to such Lender resulting from the Revolving Credit
Advances made by such Lender, as amended.
"Secured Hedge Agreement" means any Hedge Agreement required
or permitted under clause (i)(A) or (iii)(G) of Section 5.02(b) that is
entered into by and between any Loan Party and any Hedge Bank.
"Secured Obligations" has the meaning specified in the
Security Agreement.
"Secured Parties" means the Agents, the Lender Parties and the
Hedge Banks.
"Security Agreement" has the meaning specified in Section
3.01(a)(ii).
"Senior Leverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated Debt for Borrowed Money (other than
Subordinated Debt) minus (b) the sum of (i) cash and Cash Equivalents
and (ii) an amount equal to forty percent of the fair market value of
the Precious Metal Inventory, in each case of the Company and its
Subsidiaries as at the end of the most recently ended fiscal quarter of
the Company for which financial statements are required to be delivered
to the Lender Parties pursuant to Section 5.03(b) or (c), as the case
may be, to Consolidated Adjusted EBITDA of the Company and its
Subsidiaries for the twelve-month period ended as at the end of such
fiscal quarter.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
<PAGE> 40
34
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Sub-Agent" means, in the case of Bankers' Acceptances and
Multicurrency Advances denominated in Canadian Dollars, Citibank Canada
and, in the case of Multicurrency Advances denominated in any other
Foreign Currency, Citibank, N.A.
"Subordinated Debt" means any Debt of the Company that is
subordinated to the Obligations of the Company under the Loan Documents
substantially on the terms and conditions set forth in Exhibit N hereto
with such other terms and conditions that may be reasonably acceptable
to the Administrative Agent or otherwise or as permitted by Section
5.02(b)(i)(B).
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guaranty" has the meaning specified in Section
3.01(a)(iii).
"Surviving Debt" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the transactions contemplated by the Transaction Documents.
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(f) or (b) any Revolving Credit
Lender pursuant to Section 2.02(b).
<PAGE> 41
35
"Swing Line Bank" means Citicorp.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(f) or
the Revolving Credit Lenders pursuant to Section 2.02(b).
"Swing Line Facility" has the meaning specified in Section
2.01(f).
"Tax Agreement" means the Tax Sharing Agreement between WHX
Corporation and the Company, dated as of April 13, 1998, as amended, to
the extent permitted under the Loan Documents.
"Tax Certificate" has the meaning specified in Section 5.03(k)
"Taxes" has the meaning specified in Section 2.14(a).
"Term A Advance" has the meaning specified in Section 2.01(a).
"Term A Borrowing" means a borrowing consisting of
simultaneous Term A Advances of the same Type made by the Term A
Lenders.
"Term A Commitment" means, with respect to any Term A Lender
at any time, the Dollar amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term A Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term A Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.06.
"Term A Facility" means, at any time, the aggregate amount of
the Term A Lenders' Term A Commitments at such time.
"Term A Lender" means any Lender that has a Term A Commitment.
"Term A Note" means a promissory note of the Company payable
to the order of any Term A Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the indebtedness of the Company to such Lender
resulting from the Term A Advance made by such Lender, as amended.
"Term B Advance" has the meaning specified in Section 2.01(b).
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36
"Term B Borrowing" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"Term B Commitment" means, with respect to any Term B Lender
at any time, the Dollar amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term B Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.06.
"Term B Facility" means, at any time, the aggregate amount of
the Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Note" means a promissory note of the Company payable
to the order of any Term B Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Company to such Lender
resulting from the Term B Advance made by such Lender, as amended.
"Termination Date" means the earlier of July 30, 2004, and the
date of termination in whole of the Revolving Credit Commitments, the
Letter of Credit Commitments and the Multicurrency Commitments pursuant
to Section 2.06 or 6.01.
"Total Leverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated Debt for Borrowed Money minus (b) the sum
of (i) cash and Cash Equivalents and (ii) an amount equal to forty
percent of the fair market value of the Precious Metal Inventory, in
each case of the Company and its Subsidiaries as at the end of the most
recently ended fiscal quarter of the Company for which financial
statements are required to be delivered to the Lender Parties pursuant
to Section 5.03(b) or (c), as the case may be, to Consolidated Adjusted
EBITDA of the Company and its Subsidiaries for the twelve-month period
ended as at the end of such fiscal quarter.
"Transaction Documents" means, collectively, the Loan
Documents and the Related Documents.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate, Advances bearing interest at the applicable
Local Rate and Advances bearing interest at the Eurocurrency Rate.
<PAGE> 43
37
"Unused Asset Sale Proceeds Amount" means the aggregate amount
of Net Cash Proceeds required to be prepaid pursuant to Section
2.06(b)(ii) prior to the time such amount is prepaid or reinvested in
accordance with the terms of such Section unless such amount shall be
deposited in the Cash Collateral Account pending such prepayment or
reinvestment.
"Unused Multicurrency Commitment" means, with respect to any
Multicurrency Lender at any time (a) such Lender's Multicurrency
Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Multicurrency Advances made by such Lender (or
the Equivalent thereof in Dollars, if applicable), (ii) the Dollar
Equivalent of the aggregate Face Amount of all Bankers' Acceptances
purchased and/or accepted by such Lender and outstanding at such time
and (iii) such Lender's ratable share of the amount of the
Multicurrency Facility then reserved pursuant to Section 2.01(i).
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, (a) such Lender's Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances
and Letter of Credit Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks pursuant to Section
2.03(c) and outstanding at such time, (C) the aggregate principal
amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(f) and outstanding at such time and (D) the Unused
Asset Sale Proceeds Amount plus (iii) in the case of a Revolving Credit
Lender that is a Multicurrency Lender, such Lender's Multicurrency
Commitment.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
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38
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF
THE ADVANCES, THE LETTERS OF CREDIT
AND THE BANKERS' ACCEPTANCES
SECTION 2.01. The Advances and the Letters of Credit. (a) The
Term A Advances. Each Term A Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a single advance (a "Term A Advance")
to the Company on the date of the Initial Extension of Credit in an amount not
to exceed such Lender's Term A Commitment at such time. The Term A Borrowing
shall consist of Term A Advances made simultaneously by the Term A Lenders
ratably according to their Term A Commitments. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees,
on the terms and conditions hereinafter set forth, to make a single advance (a
"Term B Advance") to the Company on the date of the Initial Extension of Credit
in an amount not to exceed such Lender's Term B Commitment at such time. The
Term B Borrowing shall consist of Term B Advances made simultaneously by the
Term B Lenders ratably according to their Term B Commitments. Amounts borrowed
under this Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) The Delayed Draw Advances. Each Delayed Draw Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each, a "Delayed Draw Advance") to the Company from time to time on
any Business Day during the period from the date hereof until the Conversion
Date in an amount not to exceed such Lender's unused Delayed Draw Commitment at
such time. Each Delayed Draw Borrowing shall be in an aggregate amount of
$2,500,000 or an integral multiple of $500,000 in excess thereof and shall
<PAGE> 45
39
consist of Delayed Draw Advances made simultaneously by the Delayed Draw Lenders
ratably according to their Delayed Draw Commitments. Amounts borrowed under this
Section 2.01(c) and repaid or prepaid may not be reborrowed.
(d) The Multicurrency Advances. Each Multicurrency Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Multicurrency Advance") to the Company or any Foreign Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount (based on the Equivalent in
Dollars determined on the date of delivery of the applicable Notice of
Borrowing) not to exceed at any time outstanding such Multicurrency Lender's
Unused Multicurrency Commitment at such time. Each Multicurrency Borrowing shall
be in an aggregate amount of $50,000 or an integral multiple of $10,000 in
excess thereof (or the Equivalent thereof in any Foreign Currency determined on
the date of delivery of the applicable Notice of Borrowing) and shall consist of
Multicurrency Advances of the same Type, in the same currency and made on the
same day by the Multicurrency Lenders ratably according to their respective
Multicurrency Commitments. Within the limits of each Multicurrency Lender's
Unused Multicurrency Commitment in effect from time to time, the Company and the
Foreign Borrowers may borrow under this Section 2.01(d), prepay pursuant to
Section 2.07(a) and reborrow under this Section 2.01(d).
(e) The Revolving Credit Advances. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") to the Company from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Revolving Credit Commitment at such time. Each Revolving Credit Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Revolving Credit
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Company may borrow under this Section 2.01(e), prepay pursuant to Section
2.07(a) and reborrow under this Section 2.01(e).
(f) The Swing Line Advances. The Company may request the Swing
Line Bank to make, and the Swing Line Bank may, if in its reasonable discretion
it elects to do so, make, on the terms and conditions hereinafter set forth,
Swing Line Advances to the Company from time to time on any Business Day during
the period from the date hereof until the Termination Date (i) in an aggregate
amount not to exceed at any time outstanding $10,000,000 (the "Swing Line
Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in
<PAGE> 46
40
an amount of $100,000 or an integral multiple of $10,000 in excess thereof and
shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, so long as the
Swing Line Bank, in its reasonable discretion, elects to make Swing Line
Advances, the Company may borrow under this Section 2.01(f), repay pursuant to
Section 2.05(g) or prepay pursuant to Section 2.07(a) and reborrow under this
Section 2.01(f).
(g) Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue letters of credit (the
"Letters of Credit") for the account of the Company from time to time on any
Business Day during the period from the date hereof until 60 days before the
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
issued by such Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) such Issuing Bank's Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to
exceed the Unused Revolving Credit Commitments of the Revolving Credit Lenders
at such time. No Letter of Credit shall have an expiration date (including all
rights of the Company or the beneficiary to require renewal) later than the
earlier of 60 days before the Termination Date and one year after the date of
issuance thereof , but may by its terms be renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank that issued such Letter of Credit
and the Administrative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit but in any event at least three Business Days
prior to the date of the proposed renewal of such Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless such
Issuing Bank has notified the Company (with a copy to the Administrative Agent)
on or prior to the date for notice of termination set forth in such Letter of
Credit but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Letter of Credit (a "Notice of
Termination"); provided that the terms of each Letter of Credit that is
automatically renewable annually shall (x) require the Issuing Bank that issued
such Letter of Credit to give the beneficiary named in such Letter of Credit
notice of any Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Letter of Credit prior to the date such
Letter of Credit otherwise would have been automatically renewed and (z) not
permit the expiration date (after giving effect to any renewal) of such Letter
of Credit in any event to be extended to a date later than 60 days before the
Termination Date. If either a Notice of Renewal is not given by the Company or a
Notice of Termination is given by the relevant Issuing Bank pursuant to the
immediately preceding sentence, such Letter of Credit shall expire on the date
on which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the relevant Issuing
Bank may in its discretion, unless instructed to the contrary by the
Administrative Agent or the Company, deem that a Notice of Renewal had been
timely delivered and in such case, a Notice of Renewal shall be deemed to have
been so delivered for all purposes under this Agreement. Each Letter of Credit
shall contain a provision authorizing the Issuing Bank that issued such Letter
of Credit to deliver to the beneficiary of such Letter of Credit, upon the
occurrence and during the continuance of an Event of Default, a notice (a
"Default Termination Notice") terminating such Letter of Credit and giving such
beneficiary 15 days to
<PAGE> 47
41
draw such Letter of Credit. Within the limits of the Letter of Credit Facility,
and subject to the limits referred to above, the Company may request the
issuance of Letters of Credit under this Section 2.01(g), repay any Letter of
Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c)
and request the issuance of additional Letters of Credit under this Section
2.01(g).
(h) Drawings. Each Multicurrency Lender severally agrees, on
the terms and conditions hereinafter set forth, to accept Drafts (each Draft so
accepted, a "Bankers' Acceptance") for the account of the Canadian Borrower, and
to purchase such Bankers' Acceptances from time to time on any Business Day
during the period from the date hereof until the Termination Date having a Face
Amount (determined in the Equivalent thereof in Dollars) for all such Bankers'
Acceptances purchased by such Lender at the time of such Drawing not to exceed
such Lender's Unused Multicurrency Commitment at such time. Each Drawing shall
be comprised solely of Canadian Dollars, shall be in an aggregate Face Amount
which, together with any Canadian Prime Rate Advances made in connection with
such Drawing, equals CN$50,000 or an integral multiple of CN$10,000 in excess
thereof and shall consist of the creation and purchase of Bankers' Acceptances
at or about the same time by the Multicurrency Lenders ratably in accordance
with their respective Multicurrency Commitments. Within the limits of each
Multicurrency Lender's Unused Multicurrency Commitment in effect from time to
time, amounts drawn by the Canadian Borrower under this Section 2.01(h) and
repaid or prepaid from time to time may be redrawn by the Canadian Borrower
under this Section 2.01(h).
(i) Set Aside of Multicurrency Commitments in Respect of
Overdraft Facilities. Each Multicurrency Lender's ratable share of an aggregate
amount of Multicurrency Commitments equal to $5,000,000 (or such lesser amount
as may be designated by the Company to the Administrative Agent) shall be
reserved against the Multicurrency Facility to ensure that sufficient funds may
be made available to any Foreign Borrower for the repayment of any overdraft
facility made available to such Foreign Borrower by any Lender as the same
becomes due and payable.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than (x) 12:00 Noon (New York City time) on the third Business
Day prior to the date of the proposed Borrowing (other than a Multicurrency
Borrowing) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
or the Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, (y) 4:00 P.M. (London time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Multicurrency Borrowing denominated in a currency other than Canadian Dollars
consisting of Eurocurrency Rate Advances, or the first Business Day prior to the
date of the proposed Borrowing in the case of a Multicurrency Borrowing
denominated in a currency other than Canadian Dollars consisting of Local Rate
Advances (or, in the case of Advances denominated in a Foreign Currency where
<PAGE> 48
42
market practice differs, in accordance with the custom for such Foreign
Currency), or (z) 12:00 Noon (Toronto time) on the first Business Day prior to
the date of the proposed Borrowing in the case of a Multicurrency Borrowing
consisting of Canadian Prime Rate Advances by the applicable Borrower to the
Administrative Agent (and in the case of a Multicurrency Borrowing,
simultaneously to the applicable Sub-Agent), which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing, (v) in the
case of a Borrowing consisting of Eurocurrency Rate Advances, initial Interest
Period for each such Advance and (vi) in the case of a Multicurrency Borrowing,
currency for each such Advance. Each Appropriate Lender shall, before 12:00 Noon
(New York City time) on the date of such Borrowing, in the case of a Borrowing
consisting of Advances denominated in Dollars, and before 12:00 Noon (London
time) on the date of such Borrowing, in the case of a Multicurrency Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the applicable Administrative Agent's Account, in same
day funds, such Lender's ratable portion of such Borrowing in accordance with
the respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders, provided that the Multicurrency Lenders may otherwise
agree to fund such Borrowing disproportionately. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Company by crediting the applicable Borrower's Account;
provided, however, that, in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank or any Issuing Bank, as the case may be,
and by any other Revolving Credit Lender and outstanding on the date of such
Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as
of such date, available to the Swing Line Bank or such Issuing Bank, as the case
may be, and such other Revolving Credit Lenders for repayment of such Swing Line
Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 12:00 Noon (New York City time) on the date of the proposed Swing
Line Borrowing, by the Company to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the fifteenth day after the requested date of such
Borrowing). If, in its sole discretion, it elects to make the requested Swing
Line Advance, the Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
After the Administrative Agent's receipt of such funds and upon fulfillment of
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43
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Company by crediting the applicable
Borrower's Account. Upon written demand by the Swing Line Bank, with a copy of
such demand to the Administrative Agent, each other Revolving Credit Lender
shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and
assign to each such other Revolving Credit Lender, such other Lender's Pro Rata
Share of such outstanding Swing Line Advance as of the date of such demand, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Swing Line Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. The Company hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata Share
of an outstanding Swing Line Advance on (i) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that notice of such demand is
given not later than 12:00 Noon (New York City time) on such Business Day or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by the Swing Line Bank to any
other Revolving Credit Lender of a portion of a Swing Line Advance, the Swing
Line Bank represents and warrants to such other Lender that the Swing Line Bank
is the legal and beneficial owner of such interest being assigned by it, but
makes no other representation or warranty and assumes no responsibility with
respect to such Swing Line Advance, the Loan Documents or any Loan Party. If and
to the extent that any Revolving Credit Lender shall not have so made the amount
of such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of the Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurocurrency Rate Advances for the
initial Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $10,000,000, in the case of Term A Borrowings and Term B
Borrowings, or $2,500,000 (or the Equivalent thereof in Dollars), in the case of
Revolving Credit Borrowings, Multicurrency Borrowings and Delayed Draw
Borrowings, or if the obligation of the Appropriate Lenders to make Eurocurrency
Rate Advances shall then be suspended pursuant to Section 2.08(d)(ii), 2.10 or
2.12, (ii) for the period from the date hereof to October 30, 1998 (or such
earlier date as shall be specified in its sole discretion by the Administrative
Agent in a written notice to the Borrowers and the Lenders) no Borrower may
select Eurocurrency Rate Advances having an Interest Period other than one month
and (iii) the Term A Advances may not be outstanding as part of more than five
separate
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44
Borrowings consisting of Eurocurrency Rate Advances, the Term B Advances may not
be outstanding as more than six separate Borrowings consisting of Eurocurrency
Rate Advances, the Delayed Draw Advances may not be outstanding as more than
five separate Borrowings consisting of Eurocurrency Rate Advances, the
Multicurrency Advances may not be outstanding as more than six separate
Borrowings consisting of Eurocurrency Rate Advances and the Revolving Credit
Advances may not be outstanding as part of more than ten separate Borrowings
consisting of Eurocurrency Rate Advances.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the applicable Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurocurrency Rate Advances, the applicable Borrower shall indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and the applicable Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of such Borrower, the higher of (A) the interest rate
applicable at such time under Section 2.08 to Advances comprising such Borrowing
and (B) the cost of funds incurred by the Administrative Agent in respect of
such amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in
the case of Advances denominated in Dollars or (B) the cost of funds incurred by
the Administrative Agent in respect of such amount in the case of Advances
denominated in Foreign Currencies. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing for all purposes.
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(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than Noon (New York City time) on the third
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Company to any Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to the Company for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If the requested
form of such Letter of Credit is acceptable to such Issuing Bank in its sole
discretion, such Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Company at its office referred to in Section 9.02 or as otherwise agreed with
the Company in connection with such issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the previous week and drawings during such week under
all Letters of Credit issued by such Issuing Bank, (B) to each Revolving Credit
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by such Issuing Bank and (C) to the Administrative Agent and each
Revolving Credit Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by any Issuing Bank with an outstanding Letter of
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Credit Advance, with a copy of such demand to the Administrative Agent, each
Revolving Credit Lender shall purchase from such Issuing Bank, and such Issuing
Bank shall sell and assign to each such Revolving Credit Lender, such Lender's
Pro Rata Share of such outstanding Letter of Credit Advance as of the date of
such purchase, by making available for the account of its Applicable Lending
Office to the Administrative Agent for the account of such Issuing Bank, by
deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to such Issuing Bank. The
Company hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank which made such Advance, provided that notice of such demand is given not
later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by an Issuing Bank to any Revolving
Credit Lender of a portion of a Letter of Credit Advance, such Issuing Bank
represents and warrants to such other Lender that such Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, free and clear of
any liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Revolving Credit Lender shall
not have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by such Issuing Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of such
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Drawings of Bankers' Acceptances. (a) Request
for Drawing. Each Drawing shall be made on notice, given not later than 11:00
A.M. (Toronto time) on a Business Day at least two Business Days prior to the
date of the proposed Drawing, by the Canadian Borrower to the Administrative
Agent, which shall give each Multicurrency Lender prompt notice thereof by telex
or telecopier. Each notice of a Drawing (a "Notice of Drawing")
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shall be in writing (including by telex or telecopier), in substantially the
form of Exhibit B-2 hereto, and shall be confirmed by telephone immediately by
the Canadian Borrower, specifying therein the requested (i) date of such Drawing
(which shall be a Business Day), (ii) aggregate Face Amount of such Drawing and
(iii) initial Maturity Date for each Bankers' Acceptance comprising part of such
Drawing; provided, however, that, if the Administrative Agent determines in good
faith (which determination shall be conclusive and binding upon the Canadian
Borrower) that the Drafts to be accepted and purchased as part of any Drawing
cannot, due solely to the requested aggregate Face Amount thereof, be accepted
and/or purchased ratably by the Multicurrency Lenders in accordance with Section
2.01(h), (provided that the Multicurrency Lenders may otherwise agree to fund
such Drawing disproportionately), then the aggregate Face Amount of such Drawing
(or the Face Amount of Bankers' Acceptances to be created by any Multicurrency
Lender) shall be reduced to such lesser amount as the Administrative Agent
determines will permit such Drafts comprising part of such Drawing to be so
accepted and purchased and, unless the Canadian Borrower shall have given
written notice to the contrary to the Administrative Agent, each Multicurrency
Lender shall fund the difference between such Lender's ratable portion of the
original aggregate Face Amount of such Drawing and the Face Amount of the
Bankers' Acceptances to be created by such Lender after giving effect to such
reduction in the form of a Canadian Prime Rate Advance, which shall be deemed
for all purposes hereof to be a Multicurrency Advance made pursuant to Section
2.01(h). The Administrative Agent agrees that it will, as promptly as
practicable, notify the Canadian Borrower of the unavailability of Bankers'
Acceptances and, if applicable, of the date and the amount of each Canadian
Prime Rate Advance to be made or actually made in accordance with the
immediately preceding sentence. Each Draft in connection with any requested
Drawing (A) shall be in a minimum amount of CN$100,000 or an integral multiple
of CN$100,000 in excess thereof, and (B) shall be dated the date of the proposed
Drawing. Each Multicurrency Lender shall, before 1:00 p.m. (Toronto time) on the
date of each Drawing, complete one or more Drafts in accordance with the related
Notice of Drawing, accept such Drafts and purchase the Bankers' Acceptances
created thereby for the Drawing Purchase Price and shall, before 1:00 p.m.
(Toronto time) on such date, make available for the account of its Applicable
Lending Office to the Administrative Agent at its appropriate Administrative
Agent's Account, in same day funds, the Drawing Purchase Price payable by such
Lender for such Drawing less the Drawing Fee payable to such Lender with respect
thereto under Section 2.09(d). Upon the fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make the funds it has
received from the Multicurrency Lenders available to the Canadian Borrower by
crediting the relevant Borrower's Account or at the applicable Payment Office,
as the case may be.
(b) Limitations on Drawings. Anything in Section 2.04(a) to
the contrary notwithstanding, the Canadian Borrower may not select a Drawing if
the obligation of the Multicurrency Lenders to purchase and accept Bankers'
Acceptances shall then be suspended pursuant to Section 2.04(d) or 2.12.
<PAGE> 54
48
(c) Binding Effect of Notices of Drawing. Each Notice of
Drawing shall be irrevocable and binding on the Canadian Borrower. In the case
of any proposed Drawing, the Canadian Borrower shall indemnify each
Multicurrency Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in the
Notice of Drawing for such Drawing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Drawing Purchase Price to be paid by such Lender as part of such Drawing when,
as a result of such failure, such Drawing is not made on such date.
(d) Circumstances Making Bankers' Acceptances Unavailable. (i)
If, with respect to any proposed Drawing, the Administrative Agent determines in
good faith that circumstances affecting the money markets at the time any
related Notice of Drawing is delivered or is outstanding will result in no
market for the Bankers' Acceptances to be created in connection with such
Drawing or an insufficient demand for such Bankers' Acceptances to allow the
Lenders creating such Bankers' Acceptances to sell or trade the Bankers'
Acceptances to be created and purchased or discounted by them hereunder in
connection with such Drawing, then, upon notice to the Canadian Borrower and the
Multicurrency Lenders thereof, (A) the Notice of Drawing with respect to such
proposed Drawing shall be canceled and the Drawing requested therein shall not
be made and (B) the right of the Canadian Borrower to request a Drawing shall be
suspended until the Administrative Agent shall notify such Borrower that the
circumstances causing such suspension no longer exist. In the case of any such
cancellation of a Notice of Drawing, unless the Canadian Borrower shall give
written notice to the contrary to the Administrative Agent, the cancellation of
any such Notice of Drawing shall be deemed to be the giving by the Canadian
Borrower of a Notice of Borrowing for Multicurrency Advances consisting of
Canadian Prime Rate Advances in an aggregate principal amount equal to the
aggregate Face Amount of such proposed Drawing and the Multicurrency Lenders
shall, subject to the terms and conditions hereof applicable to the making of
Multicurrency Advances, make such Advances available to the Canadian Borrower,
if practicable, on the same Business Day, and otherwise on the next Business
Day. The Administrative Agent agrees that it will, as promptly as practicable,
notify the Canadian Borrower of the unavailability of Bankers' Acceptances and,
if applicable, of the date and the amount of each Canadian Prime Rate Advance to
be made or actually made in accordance with the immediately preceding sentence.
(ii) Upon the occurrence and during the continuance of any
Default, the obligation of the Multicurrency Lenders to purchase and/or accept
Bankers' Acceptances shall be suspended.
(e) Assumptions of the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Multicurrency Lender
prior to the date of any Drawing that such Lender will not make available to it
such Lender's ratable share of the Drawing Purchase
<PAGE> 55
49
Price of such Drawing in accordance with Section 2.04(a), the Administrative
Agent may assume that such Lender has made such ratable share available to it on
the date of such Drawing in accordance with Section 2.04(a) and the
Administrative Agent may, in reliance upon such assumption, make available to
the Canadian Borrower on such date a corresponding amount. If and to the extent
that any such Lender shall not have so made such ratable share available to the
Administrative Agent, such Lender and the Canadian Borrower severally agree to
repay or pay to the Administrative Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid or paid
to the Administrative Agent, at (i) in the case of the Canadian Borrower, a rate
per annum equal to the BA Rate used in calculating the Drawing Purchase Price
with respect to such Drawing, and (ii) in the case of such Lender, the cost of
funds incurred by the Administrative Agent in respect of such amount. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Bankers' Acceptance as part of
such Drawing for all purposes under this Agreement.
(f) Presigned Draft Forms. To enable the Multicurrency Lenders
to create Bankers' Acceptances in accordance with Section 2.01(h) and this
Section 2.04, the Canadian Borrower shall supply each Multicurrency Lender, upon
the Canadian Borrower's execution of this Agreement, with such number of Drafts
provided to the Canadian Borrower by the Administrative Agent as the
Administrative Agent may from time to time reasonably request, duly endorsed and
executed on behalf of the Canadian Borrower by any one or more of its duly
authorized officers. Each Multicurrency Lender shall exercise such care in the
custody and safekeeping of any Drafts in its possession from time to time as it
would exercise in the custody and safekeeping of similar property owned by it.
The signatures of officers of the Canadian Borrower on Drafts may be
mechanically reproduced in facsimile and Bankers' Acceptances bearing such
facsimile signatures shall be binding upon the Canadian Borrower as if they had
been manually signed by such officers. Notwithstanding that any of the
individuals whose manual or facsimile signature appears on any Draft as one of
such officers may no longer hold office at the date of such draft or at the date
of its acceptance by a Lender hereunder or at any time thereafter, any Draft or
Bankers' Acceptance so signed shall be valid and binding upon, and enforceable
against, the Canadian Borrower.
(g) Distribution of Bankers' Acceptances. Bankers' Acceptances
purchased by a Multicurrency Lender in accordance with the terms of Section
2.01(h) and this Section 2.04 may, in such Lender's sole discretion, be held by
such Lender for its own account until the applicable Maturity Date or sold,
rediscounted or otherwise disposed of by it at any time prior thereto in any
relevant market therefor.
(h) Failure to Fund in Respect of Drawings. The failure of any
Multicurrency Lender to fund the Drawing Purchase Price to be funded by it as
part of any Drawing shall not relieve any other Multicurrency Lender of its
obligation hereunder to fund its Drawing Purchase
<PAGE> 56
50
Price on the date of such Drawing, but no Multicurrency Lender shall be
responsible for the failure of any other Multicurrency Lender to fund the
Drawing Purchase Price to be funded by such other Multicurrency Lender on the
date of any Drawing.
SECTION 2.05. Repayment of Advances. (a) Term A Advances. The
Company shall repay to the Administrative Agent for the ratable account of the
Term A Lenders the aggregate outstanding principal amount of the Term A Advances
on the following dates in the amounts indicated (which amounts shall be reduced
as a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.07):
Date Amount
---- ------
September 30, 1998 $ 1,500,000
December 31, 1998 1,500,000
March 31, 1999 1,500,000
June 30, 1999 1,500,000
September 30, 1999 2,000,000
December 31, 1999 2,000,000
March 31, 2000 2,000,000
June 30, 2000 2,000,000
September 30, 2000 2,000,000
December 31, 2000 2,000,000
March 31, 2001 2,000,000
June 30, 2001 2,000,000
September 30, 2001 2,000,000
December 31, 2001 2,000,000
March 31, 2002 2,000,000
June 30, 2002 2,000,000
September 30, 2002 2,500,000
December 31, 2002 2,500,000
March 31, 2003 2,500,000
June 30, 2003 2,500,000
September 30, 2003 2,500,000
December 31, 2003 2,500,000
March 31, 2004 2,500,000
June 30, 2004 2,500,000
<PAGE> 57
51
provided, however, that the final principal installment shall be repaid on June
30, 2004 and in any event shall be in an amount equal to the aggregate principal
amount of the Term A Advances outstanding on such date.
(b) Term B Advances. The Company shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
outstanding principal amount of the Term B Advances on the following dates in
amounts determined as a percentage of the aggregate amount of Term B Advances
outstanding on September 30, 1998 as indicated below (which amounts shall be
reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.07):
Date Percentage
---- ----------
July 31, 1999 1%
July 31, 2000 1%
July 31, 2001 1%
July 31, 2002 1%
July 31, 2003 1%
July 31, 2004 1%
July 31, 2005 20%
July 30, 2006 74%
provided, however, that the final principal installment shall be repaid on July
30, 2006 and in any event shall be in an amount equal to the aggregate principal
amount of the Term B Advances outstanding on such date.
(c) Delayed Draw Advances. The Company shall repay to the
Administrative Agent for the ratable account of the Delayed Draw Lenders (i) on
each March 31, June 30, September 30 and December 31, commencing September 30,
2000, an amount equal to 1/16 of the aggregate outstanding principal amount of
the Delayed Draw Advances outstanding on the Conversion Date (after giving
effect to any prepayments required by Section 2.07(b)(i) or (ii) and which
amount shall be reduced as a result of the application of further prepayments in
accordance with the order of priority set forth in the applicable paragraph of
section 2.07) and (ii) on June 30, 2004 an amount equal to the aggregate
principal amount of the Delayed Draw Advances outstanding on such date.
(d) Multicurrency Advances. Each Foreign Borrower shall repay
to the Administrative Agent for the ratable account of the Multicurrency Lenders
on the Termination Date the aggregate outstanding principal amount of the
Multicurrency Advances then outstanding.
<PAGE> 58
52
(e) Bankers' Acceptances. The Canadian Borrower shall, subject
to Sections 2.11(a) and 2.11(b), pay to the Administrative Agent for the ratable
account of the Multicurrency Lenders on the Maturity Date of any Bankers'
Acceptances an amount equal to the aggregate Face Amount of all such Bankers'
Acceptances maturing on such date. Any payment by the Canadian Borrower of any
Bankers' Acceptances in accordance with this Section 2.05(e) shall, to the
extent of such payment, satisfy the obligations of the Canadian Borrower under
the Bankers' Acceptances to which it relates and, in the case of a Bankers'
Acceptance, the Lender that has accepted such Bankers' Acceptance shall, to the
extent of such payment to such Lender, thereafter be solely responsible for the
payment thereof.
(f) Revolving Credit Advances. The Company shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date the aggregate outstanding principal amount of the Revolving
Credit Advances then outstanding.
(g) Swing Line Advances. The Company shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the fifteenth day after the requested
date of such Borrowing) and the Termination Date.
(h) Letter of Credit Advances. (i) The Company shall repay to
the Administrative Agent for the account of each Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of the second Business Day after the date on which such Advance was made and the
Termination Date the outstanding principal amount of each Letter of Credit
Advance made by each of them.
(ii) The Obligations of the Company under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Company in
respect of any L/C Related Document
<PAGE> 59
53
or any other amendment or waiver of or any consent to departure from
all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranties or any other guarantee, for
all or any of the Obligations of the Company in respect of the L/C
Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Company or a guarantor.
SECTION 2.06. Termination or Reduction of the Commitments. (a)
Optional. The Company may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Delayed Draw Commitments, the Letter of Credit Facility, the Unused
Revolving Credit Commitments and the Unused Multicurrency Commitments; provided,
however, that each partial reduction of a Facility (i) shall be in an aggregate
amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term A Borrowing, after
giving effect to the Term A Borrowing, and from time to time thereafter upon
each repayment or prepayment of the Term A Advances, the aggregate Term A
Commitments of the Term A Lenders shall be automatically and permanently
reduced, on a pro rata basis, by an amount equal to the amount by which the
aggregate Term A Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term A Advances then outstanding.
<PAGE> 60
54
(ii) On the date of the Term B Borrowing, after giving effect
to the Term B Borrowing, and from time to time thereafter upon each repayment or
prepayment of the Term B Advances, the aggregate Term B Commitments of the Term
B Lenders shall be automatically and permanently reduced, on a pro rata basis,
by an amount equal to the amount by which the aggregate Term B Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term B Advances then outstanding.
(iii) The Delayed Draw Facility shall be automatically and
permanently reduced, on a pro rata basis, (A) on the date of each Delayed Draw
Borrowing, by an amount equal to the amount of such Borrowing, from time to time
on and after the Conversion Date upon each repayment or prepayment of the
Delayed Draw Advances, by an amount equal to the amount by which the aggregate
Delayed Draw Commitments of the Delayed Draw Lenders immediately prior to such
reduction exceed the aggregate unpaid principal amount of the Delayed Draw
Advances then outstanding and (B) on the date on which prepayment thereof is
required to be made pursuant to Section 2.07(b)(i),(ii) or (iii) prior to the
Conversion Date in an amount equal to the applicable Delayed Draw Reduction
Amount.
(iv) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
(v) The Swing Line Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
(vi) The Revolving Credit Facility shall be automatically and
permanently reduced, on a pro rata basis, (A) on each date on which prepayment
thereof is required to be made pursuant to Section 2.07(b)(i), (ii) or (iii) in
an amount equal to the applicable Reduction Amount and (B) on the date of
receipt by the Company or any of its Subsidiaries of the Net Cash Proceeds of
any sale, lease, transfer or other disposition of any asset of the Company or
any of its Subsidiaries in each case by an amount equal to the amount, if any,
of such Net Cash Proceeds that concurrently with the receipt thereof (x) shall
not have been deposited by the Company into the Cash Collateral Account, (y)
shall not have been applied to prepay Advances or (z) shall not have been
applied in accordance with Section 8(c) of the Security Agreement, provided that
each such reduction of the Revolving Credit Facility shall be made ratably among
the Revolving Credit Lenders in accordance with their Revolving Credit
Commitments.
(vii) The Multicurrency Facility shall be automatically and
permanently reduced, on a pro rata basis, (A) on each date on which prepayment
thereof is required to be made
<PAGE> 61
55
pursuant to Section 2.07(b)(i), (ii) or (iii) in an amount equal to the
applicable Multicurrency Reduction Amount, provided that each such reduction of
the Multicurrency Facility shall be made ratably among the Multicurrency Lenders
in accordance with their Multicurrency Commitments.
SECTION 2.07. Prepayments. (a) Optional. Each Borrower may,
upon notice not later than 11:00 A.M. (New York City time) on the day of such
prepayment in the case of Base Rate Advances and at least two Business Days
prior to such prepayment in the case of Eurocurrency Rate Advances, in each case
to the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding aggregate principal amount of the Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof (or the Equivalent thereof in a Foreign Currency) and (y) if
any prepayment of a Eurocurrency Rate Advance is made on a date other than the
last day of an Interest Period for such Advance, such Borrower shall also pay
any amounts owing pursuant to Section 9.04(c). Each such prepayment of Term A
Advances, Term B Advances and, after the Conversion Date, Delayed Draw Advances
shall be applied to the installments thereof in the order specified by the
Company.
(b) Mandatory. (i) The Company shall, on the 90th day
following the end of each Fiscal Year, prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings in an amount equal to (A) to
the extent that the Total Leverage Ratio exceeds 4.00:1.00, 75% and (B) to the
extent that the Total Leverage Ratio is less than 4.00:1.00 but is greater than
3.00:1.00, 50% of the amount, in the case of any payments made in any year after
1999, of Excess Cash Flow for such Fiscal Year and, in the case of any payment
made in 1999, of Excess Cash Flow for the period from April 13, 1998 through the
end of the Fiscal Year ending December 31, 1998. Each such prepayment shall be
applied as set forth in clause (vii) below.
(ii) (A) The Company shall, on the date that is 270 days after
the date of receipt of the Net Cash Proceeds by the Company or any of its
Subsidiaries from the sale, lease, transfer or other disposition of any assets
of the Company or any of its Subsidiaries (other than (x) any sale, lease,
transfer or other disposition of assets pursuant to any clause of Section
5.02(e) other than clause (iii) thereof or (y) an aggregate amount of Net Cash
Proceeds less than $2,500,000 in any Fiscal Year of the Company), prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to that portion of such Net Cash Proceeds that has
not been reinvested in the business of the Company and its Subsidiaries prior to
such 270th day. Each such prepayment shall be applied as set forth in clause
(vii) below.
(B) The Company shall, on the date of receipt of the Net Cash
Proceeds by the Company or any of its Subsidiaries from the sale, lease,
transfer or other disposition of any assets
<PAGE> 62
56
of the Company or any of its Subsidiaries pursuant to Section 5.02(e)(viii),
prepay an aggregate principal amount of Advances comprising part of the same
Borrowings in an amount equal to such Net Cash Proceeds. Each such prepayment
shall be applied as set forth in clause (vii) below.
(C) The Company shall, on the date of receipt of the Net Cash
Proceeds by the Company or any of its Subsidiaries (x) from the sale or issuance
of Subordinated Debt or (y) the receipt of any capital contribution from WHX
Corporation or any of its Subsidiaries or from the sale or issuance of any
equity securities permitted by Section 5.02(g)(iii), prepay an aggregate
principal amount of Advances comprising part of the same Borrowings in an amount
equal to such Net Cash Proceeds. Each such prepayment shall be applied as set
forth in clause (vii) below.
(iii) The Company shall, on the date of receipt of the Net
Cash Proceeds by the Company or any of its Subsidiaries from the incurrence or
issuance by the Company or any of its Subsidiaries of any Debt (other than Debt
incurred or issued pursuant to Section 5.02(b)), prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings in an amount equal
to the amount of such Net Cash Proceeds. Each such prepayment shall be applied
as set forth in clause (vii) below.
(iv) The Company shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
in an amount equal to the amount by which (A) the sum of the aggregate principal
amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances
and (z) the Swing Line Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the lesser of the
Revolving Credit Facility and the excess of (1) the sum of the Loan Values of
the Eligible Collateral over (2) the amount referred to in clause (v)(A) below
on such Business Day.
(v) The Foreign Borrowers shall, on each Business Day, prepay
an aggregate principal amount of the Multicurrency Advances comprising part of
the same Borrowings equal to the amount by which (A) the sum of (x) the
aggregate principal amount of the Multicurrency Advances and (y) the aggregate
Face Amount of Bankers' Acceptances then outstanding exceeds (B) the lesser of
the Multicurrency Facility and the excess of (1) the sum of the Loan Values of
the Eligible Collateral over (2) the amount referred to in clause (iv)(A) above
on such Business Day.
(vi) The Company shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
<PAGE> 63
57
(vii) (A) Prepayments made pursuant to clauses (i), (ii)(A),
(ii)(B) and (iii) above shall be applied as follows:
first, ratably to the Term A Facility, the Term B Facility
and, on and after the Conversion Date, the Delayed Draw Facility, in
each case ratably to the principal installments thereof, and
second, to the extent that no Term A Advances, Term B Advances
or, after the Conversion Date, Delayed Draw Advances remain
outstanding, permanently to reduce the Revolving Credit Facility and,
prior to the Conversion Date, the Delayed Draw Facility as set forth in
clause (viii) or (ix) below, as applicable.
(B) Prepayments made pursuant to clause (ii)(C) above
shall be applied as follows:
first, 75% ratably to the Term A Facility, the Term B Facility
and, on and after the Conversion Date, the Delayed Draw Facility, in
each case ratably to the principal installments thereof, and 25%, at
the Company's election, (1) ratably to the Term A Facility, the Term B
Facility and, on and after the Conversion Date, the Delayed Draw
Facility, in each case ratably to the principal installments thereof or
(2) to prepay the Revolving Credit Facility as set forth in clause
(viii) below (without giving effect to clause (y) thereof), and
second, to the extent that no Term A Advances, Term B Advances
or, after the Conversion Date, Delayed Draw Advances remain
outstanding, 75% permanently to ratably reduce the Revolving Credit
Facility and the Multicurrency Facility and, prior to the Conversion
Date, the Delayed Draw Facility as set forth in clause (viii), (ix) or
(xi) below, as applicable, and 25%, to prepay the Revolving Credit
Facility as set forth in clause (viii) below (without giving effect to
clause (y) thereof) .
(viii) Prepayments of the Revolving Credit Facility made
pursuant to clause (i), (ii), (iii) or (iv) above shall be first applied to
prepay Letter of Credit Advances then outstanding until such Advances are paid
in full, second applied to prepay Swing Line Advances then outstanding until
such Advances are paid in full and third applied to prepay Revolving Credit
Advances then outstanding comprising part of the same Borrowings until such
Advances are paid in full; and, in the case of prepayments of the Revolving
Credit Facility required pursuant to clause (i), (ii) or (iii) above, (x) the
amount remaining (if any) after the prepayment in full of the Revolving Credit
Advances then outstanding (the sum of such prepayment amounts and remaining
amount being referred to herein as the "Reduction Amount") may be retained by
the Company and (y) the Revolving Credit Facility shall be permanently reduced
as set forth in Section 2.06(b)(vi).
<PAGE> 64
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(ix) Prepayments of the Delayed Draw Facility before the
Conversion Date made pursuant to clause (i), (ii) or (iii) above shall be
applied to prepay Delayed Draw Advances then outstanding comprising part of the
same Borrowings until such Advances are paid in full; and the amount remaining
(if any) after the prepayment in full of the Delayed Draw Advances then
outstanding (the sum of such prepayment amounts and remaining amount being
referred to herein as the "Delayed Draw Reduction Amount") may be retained by
the Company and the Delayed Draw Facility shall be permanently reduced as set
forth in Section 2.06(b)(iii).
(x) If the Administrative Agent notifies the Foreign Borrowers
that, on any interest payment date, the Equivalent in Dollars (determined on the
third Business Day prior to such interest payment date) of the aggregate
principal amount of all Multicurrency Advances then outstanding exceeds 103% of
the aggregate Multicurrency Commitments of the Multicurrency Lenders on such
date, the Foreign Borrowers shall, within two Business Days after receipt of
such notice, prepay the outstanding principal amount of any Multicurrency
Advances owing by the Foreign Borrowers in an aggregate amount sufficient to
reduce such sum to an amount not to exceed 100% of the aggregate Multicurrency
Commitments of the Multicurrency Lenders on such date.
(xi) Prepayments of the Multicurrency Facility made pursuant
to clause (i), (ii), (iii) or (v) above shall be applied to prepay Multicurrency
Advances then outstanding comprising part of the same Borrowings until such
Advances are paid in full; and, in the case of prepayments of the Multicurrency
Facility required pursuant to clause (i), (ii) or (iii) above, (x) the amount
remaining (if any) after the prepayment in full of the Multicurrency Advances
then outstanding (the sum of such prepayment amounts and remaining amount being
referred to herein as the "Multicurrency Reduction Amount") may be retained by
the Company and (y) the Multicurrency Facility shall be permanently reduced as
set forth in Section 2.06(b)(vii).
(xii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.08. Interest. (a) Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears monthly on the
first day of each month during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
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(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurocurrency Rate for such Interest Period for such Advance plus
(B) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurocurrency Rate
Advance shall be Converted or paid in full.
(iii) Local Rate Advances. During such periods as such Advance
is a Local Rate Advance, a rate per annum equal at all times to the sum
of (A) the Local Rate in effect from time to time plus (B) the
Applicable Margin for Local Rate Advances in effect from time to time,
payable in arrears quarterly on the first day of each October, January,
April and July during such periods and on the date such Local Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, each Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing by it to each Lender, payable in arrears
on the dates referred to in clause (a)(i), (a)(ii) or (a)(iii) above and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (a)(i), (a)(ii)
or (a)(iii) above and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable under the Loan Documents that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (a)(i), (a)(ii) or
(a)(iii) above and, in all other cases, on Base Rate Advances pursuant to clause
(a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.10 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the applicable Borrower and each
Appropriate Lender of the applicable Interest Period and the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(a)(ii) above, and the applicable rate, if any, furnished by each Reference Bank
for the purpose of determining the applicable interest rate under clause (a)(ii)
above.
(d) Interest Rate Determination. (i) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurocurrency Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the
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Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish
timely information to the Administrative Agent for determining the Eurocurrency
Rate for any Eurocurrency Rate Advances,
(A) the Administrative Agent shall forthwith notify the
applicable Borrower and the Lenders that the interest rate cannot be
determined for such Eurocurrency Rate Advances,
(B) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advance is denominated in Dollars, be prepaid by the Company or be
automatically Converted into a Base Rate Advance and (2) if such
Eurocurrency Rate Advance is denominated in any Foreign Currency, be
prepaid by the Foreign Borrowers or be automatically Converted into a
Local Rate Advance of such Foreign Currency (or if such Advance is then
a Base Rate Advance or a Local Rate Advance, will continue as a Base
Rate Advance or a Local Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert
Advances into, Eurocurrency Rate Advances shall be suspended until the
Administrative Agent shall notify the applicable Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(e) BA Rate Determination. (i) If the Reuters Screen CDOR Page
is not available for the timely determination of the BA Rate, the Canadian
Reference Lender agrees to furnish to the Administrative Agent timely
information for the purpose of determining the BA Rate.
(ii) If the Reuters Screen CDOR Page is not available for the
timely determination of the BA Rate, and the Canadian Reference Lender is not
able to furnish timely information to the Administrative Agent for determining
the BA Rate for any Bankers' Acceptances,
(A) the Administrative Agent shall forthwith notify the
Canadian Borrower and the Lenders that the interest rate cannot be
determined for such Bankers' Acceptances, and
(B) the obligation of the Lenders to make, or to renew,
Bankers' Acceptances shall be suspended until the Administrative Agent
shall notify the Canadian Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
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(f) Interest Act (Canada). Whenever a rate of interest
hereunder is calculated on the basis of a year (the "deemed year") which
contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest shall be expressed as a yearly rate for
purposes of the Interest Act (Canada) by multiplying such rate of interest by
the actual number of days in the calendar year of calculation and dividing it by
the number of days in the deemed year.
(g) Nominal Rates; No Deemed Reinvestment. The principle of
deemed reinvestment of interest shall not apply to any interest calculation
under this Agreement; all interest payments to be made hereunder shall be paid
without allowance or deduction for reinvestment or otherwise, before and after
maturity, default and judgment. The rates of interest specified in this
Agreement are intended to be nominal rates and not effective rates. Interest
calculated hereunder shall be calculated using the nominal rate method and not
the effective rate method of calculation.
(h) Interest Paid by the Canadian Borrower. Notwithstanding
any provision of this Agreement, in no event shall the aggregate "interest" (as
defined in Section 347 of the Criminal Code (Canada)) payable by the Canadian
Borrower under this Agreement exceed the effective annual rate of interest on
the "credit advanced" (as defined in the Section) under this Agreement lawfully
permitted by that Section and, if any payment, collection or demand pursuant to
this Agreement in respect of "interest" (as defined in that Section) is
determined to be contrary to the provisions of that Section, such payment,
collection or demand shall be deemed to have been made by mutual mistake of the
Canadian Borrower and the Lenders and the amount of such payment or collection
shall be refunded to the Canadian Borrower. For the purposes of this Agreement,
the effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the relevant term
and, in the event of a dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Lenders will be prima facie evidence of
such rate.
SECTION 2.09. Fees. (a) Commitment Fee. The Company shall pay
to the Administrative Agent for the account of the Lenders a commitment fee,
from the date hereof in the case of each Initial Lender and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable in
arrears on the date of the initial Borrowing hereunder, thereafter monthly on
the first day of each month, commencing August 1, 1998, and on the Termination
Date, at the rate of the Applicable Percentage on the average daily unused
portion of each Appropriate Lender's Delayed Draw Commitment and its Unused
Multicurrency Commitment and on the sum of the average daily Unused Revolving
Credit Commitment of such Lender plus its Pro Rata Share of the average daily
outstanding Swing Line Advances during such month; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
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(b) Letter of Credit Fees, Etc. (i) The Company shall pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the first day of each March, June,
September and December, commencing September 1, 1998, and on the Termination
Date, on such Lender's Pro Rata Share of the average daily aggregate Available
Amount during such quarter of all Letters of Credit outstanding from time to
time at the rate of the Applicable Margin for Letter of Credit fees.
(ii) The Company shall pay to each Issuing Bank, for its own
account, such commissions, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as the
Company and such Issuing Bank shall agree.
(c) Agents' Fees. The Company shall pay to each Agent for its
own account such fees as may from time to time be agreed between the Company and
such Agent.
(d) Drawing Fees. The Canadian Borrower shall, on the date of
each Drawing and on the date of each renewal of any outstanding Bankers'
Acceptances, pay to the Administrative Agent, in Canadian Dollars, for the
ratable account of the Multicurrency Lenders accepting Drafts and purchasing
Bankers' Acceptances, the Drawing Fee with respect to such Bankers' Acceptances.
The Canadian Borrower irrevocably authorizes each such Lender to deduct the
Drawing Fee payable with respect to each Bankers' Acceptance of such Lender from
the Drawing Purchase Price payable by such Lender in respect of such Bankers'
Acceptance in accordance with Section 2.04 and to apply such amount so withheld
to the payment of such Drawing Fee for the account of the Canadian Borrower and,
to the extent such Drawing Fee is so withheld and legally permitted to be so
applied, the Canadian Borrower's obligations under the preceding sentence in
respect of such Drawing Fee shall be satisfied.
SECTION 2.10. Conversion of Advances. (a) Optional. Each
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than Noon (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections 2.08
and 2.12, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurocurrency Rate Advances into Base Rate Advances or Local Rate
Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances and shall not change the currency in which such
Advances are denominated, any Conversion of Base Rate Advances or Local Rate
Advances into Eurocurrency Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is
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into Eurocurrency Rate Advances, the duration of the initial Interest Period for
such Advances. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurocurrency Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, in the
case of Term A Borrowings and Term B Borrowings or $2,500,000, in the case of
Revolving Credit Borrowings, Multicurrency Borrowings and Delayed Draw
Borrowings, such Advances shall automatically (i) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and (ii) if
such Eurocurrency Rate Advances are denominated in a Foreign Currency, be
Converted into Local Rate Advances of such Foreign Currency.
(ii) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurocurrency Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advances are denominated in Dollars, Convert into Base Rate
Advances and (B) if such Eurocurrency Rate Advances are denominated in a Foreign
Currency, be Converted into a Local Rate Advance of such Foreign Currency.
(iii) Upon the occurrence and during the continuance of any
Default, (A) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and (2) if
such Eurocurrency Rate Advances are denominated in a Foreign Currency, be
Converted into a Local Rate Advance of such Foreign Currency and (B) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances and the obligation of the Multicurrency Lenders to create or renew
Bankers' Acceptances shall be suspended.
SECTION 2.11. Renewal and Conversion of Bankers' Acceptances.
(a) Optional Renewal. The Canadian Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 12:00 Noon (New York City time)
on a Business Day at least two Business Days prior to the date of the proposed
renewal and subject to the provisions of Section 2.12, renew all or any portion
of the Bankers' Acceptances comprising part of the same Drawing; provided,
however, that:
(i) any renewal of Bankers' Acceptances shall be made only on
the then existing Maturity Date for such Bankers' Acceptances;
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(ii) each renewal of Bankers' Acceptances comprising part of
the same Drawing shall be made ratably among the Multicurrency Lenders
holding such Bankers' Acceptances in accordance with the respective
amount of such Bankers' Acceptances so held; and
(iii) no renewal of any Bankers' Acceptance may be made at any
time that a Default has occurred and is continuing.
Each such notice of renewal shall, within the restrictions set forth above,
specify (A) the date of such renewal (which shall be the then existing Maturity
Date of such Bankers' Acceptances and shall be a Business Day), (B) the Bankers'
Acceptances to be renewed, (C) if less than all of the Bankers' Acceptances
comprising part of any Drawing are to be renewed, the aggregate Face Amount for
such renewal and (D) the term to maturity of the renewed Bankers' Acceptances
(which shall comply with the definition of "Maturity Date" in Section 1.01);
provided, however, that, if the Administrative Agent determines in good faith
(which determination shall be conclusive and binding upon the Canadian Borrower)
that the Bankers' Acceptances cannot, due solely to the requested aggregate Face
Amount thereof, be renewed ratably by the Multicurrency Lenders, the aggregate
Face Amount of such renewal (or the Face Amount of Bankers' Acceptances to be
created by any Multicurrency Lender) shall be reduced to such lesser amount as
the Administrative Agent determines will permit such renewal to be so made and
each Multicurrency Lender shall fund the difference between such Lender's
ratable portion of the original aggregate Face Amount of such renewal and the
Face Amount of the Bankers' Acceptances to be created by such Lender after
giving effect to such reduction in the form of a Canadian Prime Rate Advance,
which shall be deemed for all purposes hereof to be a Multicurrency Advance made
pursuant to Section 2.01(d). Each notice of renewal under this Section 2.11(a)
shall be irrevocable and binding on the Canadian Borrower. Upon any renewal of
Bankers' Acceptances comprising part of any Drawing in accordance with this
Section 2.11(a), the Multicurrency Lenders holding the Bankers' Acceptances to
be renewed shall exchange such maturing Bankers' Acceptances for new Bankers'
Acceptances containing the terms set forth in the applicable notice of renewal,
and the Drawing Purchase Price payable for each such renewal shall be applied,
together with other funds, if necessary, available to the Canadian Borrower, to
reimburse the Bankers' Acceptances otherwise maturing on such date in accordance
with Section 2.05(e). The Canadian Borrower hereby irrevocably authorizes and
directs each Multicurrency Lender to apply the proceeds of each renewed Bankers'
Acceptance owing to it to the reimbursement, in accordance with this Section
2.11(a), of the Bankers' Acceptances owing to such Multicurrency Lender and
maturing on such date.
(b) Optional Conversion. The Canadian Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 12:00
noon (Toronto time) on a Business Day at least two Canadian Business Days prior
to the date of the proposed Conversion and subject to the provisions of Section
2.12, Convert all or any portion of the Bankers'
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Acceptances comprising part of the same Drawing to a Multicurrency Borrowing
comprised of Canadian Prime Rate Advances; provided, however, that:
(i) any Conversion of Bankers' Acceptances shall be made only
on the then existing Maturity Date for such Bankers' Acceptances;
(ii) each Conversion of Bankers' Acceptances comprising part
of the same Drawing shall be made ratably among the Multicurrency
Lenders holding such Bankers' Acceptances in accordance with the
respective amounts of such Bankers' Acceptances so held; and
(iii) no Conversion may be made if (A) the amount of the
Advance to be made by any Multicurrency Lender in connection with such
Conversion would exceed such Multicurrency Lender's Unused
Multicurrency Commitment in effect at the time of such Conversion, or
(B) after giving effect to such Conversion, the sum of the aggregate
principal amount of outstanding Multicurrency Advances plus the
aggregate Face Amount of Bankers' Acceptances then outstanding would
exceed the Multicurrency Facility.
Each such notice of Conversion shall, within the restrictions set forth above,
specify (A) the date of such Conversion (which shall be the then existing
Maturity Date of such Bankers' Acceptances and shall be a Business Day), (B) the
Bankers' Acceptances to be Converted and (C) if less than all of the Bankers'
Acceptances comprising part of any Drawing are to be Converted, the aggregate
Face Amount of such Conversion. Each notice of Conversion under this Section
2.11(b) shall be irrevocable and binding on the Canadian Borrower. Upon any
Conversion of Bankers' Acceptances comprising part of the same Drawing in
accordance with this Section 2.11(b), the obligation of the Canadian Borrower to
reimburse the Lenders under Section 2.13 in respect of the Bankers' Acceptances
otherwise maturing on such date shall, to the extent of such Conversion, be
Converted to an obligation to reimburse the Lenders making the Multicurrency
Advances made in respect of such maturing Bankers' Acceptances on such date
ratably in accordance with the amount of the Advances held by such Lender at the
time of reimbursement. The Canadian Borrower hereby irrevocably authorizes and
directs each Multicurrency Lender to apply the net proceeds of each Canadian
Prime Rate Advance made by such Lender pursuant to this Section 2.11(b) to the
reimbursement of the Bankers' Acceptances owing to such Lender and maturing on
such date.
(c) Mandatory Conversion. If any Default shall have occurred
and be continuing or if the Canadian Borrower shall fail (i) to deliver a
properly completed notice of renewal under Section 2.11(a) or a properly
completed notice of Conversion under Section 2.11(b) indicating its intention to
renew or to Convert any maturing Bankers' Acceptances or (ii) to reimburse the
Multicurrency Lenders for any Bankers' Acceptances comprising part of the same
Drawing pursuant to Section 2.05, the Administrative Agent will forthwith so
notify the
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Canadian Borrower and the Multicurrency Lenders, whereupon each such Bankers'
Acceptance will automatically, on the then existing Maturity Date of such
Bankers' Acceptances, Convert into a Canadian Prime Rate Advance.
SECTION 2.12. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be:
(A) any increase in the cost to any Lender Party of agreeing
to make or of making, funding or maintaining Eurocurrency Rate Advances
or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit;
(B) any increase in the cost to any Lender Party of agreeing
to perform or of performing its obligations under this Agreement under
or in respect of Bankers' Acceptances; or
(C) any reduction in any amount payable to, or any increase in
any payment required to be made by, or any forgiveness or reduction of
effective return to, any Lender Party under this Agreement under or in
respect of any Bankers' Acceptances
(excluding, for purposes of this Section 2.12, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.14 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then each of the Borrowers shall
from time to time, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party additional amounts sufficient to compensate such Lender Party
for such increased cost attributable to such Borrower. A certificate as to the
amount of such increased cost, submitted to the Borrowers by such Lender Party,
shall be conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority,
including, without limitation, any agency of the European Union or similar
monetary or multinational authority (whether or not having the force of law),
there shall be any increase in the amount of capital required or expected to be
maintained by any Lender Party or any corporation controlling such Lender Party
as a result of or based upon the existence of such Lender Party's commitment to
lend, to accept, purchase and discount Bankers' Acceptances or to issue or
participate in Letters of Credit hereunder and other commitments of such type or
the purchase or acceptance and maintenance of Bankers'
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Acceptances or the issuance or maintenance of or participation in the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party or such corporation (with a copy of such demand to the Administrative
Agent), the Borrowers shall pay to the Administrative Agent for the account of
such Lender Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party in the light of
such circumstances, to the extent that such Lender Party reasonably determines
such increase in capital to be allocable to the existence of such Lender Party's
commitment to lend, to accept, purchase and discount Bankers' Acceptances or to
issue or participate in Letters of Credit hereunder or the purchase or
acceptance and maintenance of Bankers' Acceptances or to the issuance or
maintenance of or participation in any Letters of Credit. A certificate as to
such amounts submitted to the Borrowers by such Lender Party shall be conclusive
and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurocurrency Rate Advances under
any Facility, Lenders owed at least 51% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that (i) they are unable to
obtain matching deposits in the London inter-bank market at or about 11:00 A.M.
(London time) on the second Business Day before the making or Conversion of a
Borrowing in sufficient amounts to fund their respective Multicurrency Advances
as a part of such Borrowing during its Interest Period or (ii) the Eurocurrency
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the applicable Borrower and the Appropriate Lenders,
whereupon (A) such Borrower will, on the last day of the then existing Interest
Period therefor, (1) if such Eurocurrency Rate Advances are denominated in
Dollars, either (x) prepay such Advances or (y) Convert such Advances into Base
Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in any
Foreign Currency, either (x) prepay such Advances or (y) Convert such Advances
into Local Rate Advances of such Foreign Currency and (B) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
applicable Borrower and the Appropriate Lenders that the circumstances causing
such suspension no longer exist; provided that, if the circumstances set forth
in clause (ii) above are applicable, the applicable Foreign Borrower may elect,
by notice to the Administrative Agent and the Multicurrency Lenders, to continue
such Multicurrency Advances in such Foreign Currency for Interest Periods of not
longer than one month, which Multicurrency Advances shall thereafter bear
interest at a rate per annum equal to the Applicable Margin plus, for each
Multicurrency Lender, the cost to such Multicurrency Lender (expressed as a rate
per annum) of funding its Eurocurrency Rate Advances by whatever means it
reasonably determines to be appropriate. Each Multicurrency Lender shall certify
its cost of funds for each Interest Period to the Administrative Agent and the
applicable Foreign Borrower as soon as practicable (but in any event not later
than ten Business Days after the first day of such Interest Period).
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(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances in Dollars or any Foreign Currency or to continue to fund or maintain
Eurocurrency Rate Advances in Dollars or any Foreign Currency hereunder, then,
on notice thereof and demand therefor by such Lender to the Borrowers through
the Administrative Agent, (i) each Eurocurrency Rate Advance under each Facility
under which such Lender has a Commitment will automatically, upon such demand,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance, and (B) if such Eurocurrency Rate Advance is
denominated in any Foreign Currency, be Converted into a Local Rate Advance of
such Foreign Currency, and (ii) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrowers that such Lender has
determined that the circumstances causing such suspension no longer exist.
(e) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in the interpretation of any law or regulation
(including, without limitation, any change in acceptance limits imposed on any
Lender) shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Multicurrency Lender or any
of their respective BA Lending Offices to perform its obligations hereunder to
complete and accept Drafts, to purchase Bankers' Acceptances or to continue to
fund or maintain Bankers' Acceptances hereunder, then, upon notice thereof and
demand therefor by such Multicurrency Lender to the Canadian Borrower through
the Administrative Agent (i) an amount equal to the aggregate Face Amount of all
Bankers' Acceptances outstanding at such time held by such Multicurrency Lender
shall, upon such demand (which shall only be made if deemed necessary by the
applicable Lender to comply with applicable law), be deposited by the Canadian
Borrower into the Canadian Cash Collateral Account until the Maturity Date of
each such Bankers' Acceptance, (ii) upon the Maturity Date of any Bankers'
Acceptance in respect of which any such deposit has been made, the
Administrative Agent shall be, and hereby is, authorized (without notice to or
any further action by the Canadian Borrower) to apply, or to direct the
Administrative Agent to apply, such amount (or the applicable portion thereof)
to the reimbursement of such Bankers' Acceptance and (iii) the obligation of the
Multicurrency Lenders to complete and accept Drafts and/or to purchase Bankers'
Acceptances shall be suspended until the Administrative Agent shall notify the
Canadian Borrower that such Multicurrency Lender has determined that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.17),
except with respect to principal of, interest on, and other amounts relating to,
Advances denominated in a Foreign Currency, not later than
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11:00 A.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the applicable Administrative Agent's Account in same
day funds, with payments received after such time being deemed to have been
received on the next succeeding Business Day. The Foreign Borrowers shall make
each payment hereunder with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Foreign Currency and Bankers'
Acceptances, not later than 11:00 A.M. (at the Payment Office for such Foreign
Currency) on the day when due in such Foreign Currency to the applicable
Administrative Agent in same day funds, by deposit of such funds to the
applicable Administrative Agent's Account in same day funds, with payments
received by the Administrative Agent or such Sub-Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment is in respect of principal, interest, commitment fees or any
other Obligation then payable hereunder and under the Notes to more than one
Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if such
payment is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of such Borrower's accounts with such Lender
Party any amount so due.
(c) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days (or, in each case of Advances denominated in Foreign Currencies where
market practice differs, in accordance with market practice) and all
computations of interest based on the BA Rate shall be made by the
Administrative Agent on the basis of a year of 365 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes or in
respect of Bankers' Acceptances shall be stated to be due on a day other than a
Business Day, such payment
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shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
commitment fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurocurrency Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the applicable Borrower prior to the date on which any payment is due to
any Lender Party hereunder that such Borrower will not make such payment in
full, the Administrative Agent may assume that such Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
such Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender Party shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender Party together with interest thereon, for each day from the date such
amount is distributed to such Lender Party until the date such Lender Party
repays such amount to the Administrative Agent at, (i) the Federal Funds Rate in
the case of Advances denominated in Dollars or (ii) the cost of funds incurred
by the Administrative Agent in respect of such amount in the case of Advances
denominated in Foreign Currencies.
(f) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances, the Face Amount of all outstanding
Bankers' Acceptances and the Available Amount of all Letters of Credit then
outstanding, in repayment or prepayment of such of the outstanding Advances or
other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
SECTION 2.14. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes or in respect of any Bankers' Acceptances shall be
made, in accordance with Section 2.13, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party and each Agent, taxes that are imposed on its overall net
income by the United States and taxes that are imposed on its overall net income
(and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or such Agent, as the
case may be, is organized or any political subdivision thereof and, in the case
of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political subdivision
thereof (all such non-excluded
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taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes or in respect of any Bankers'
Acceptances being hereinafter referred to as "Taxes"). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or in respect of any Bankers' Acceptances to any
Lender Party or any Agent or, if the Administrative Agent shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or in
respect of any Bankers' Acceptances to any Lender Party, (i) the sum payable by
such Borrower shall be increased as may be necessary so that after such Borrower
and the Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 2.14) such
Lender Party or such Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Borrower
shall make all such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
in respect of any Bankers' Acceptances or from the execution, delivery or
registration of, performance under, or otherwise with respect to, this Agreement
, the Notes, any Letters of Credit or any Bankers' Acceptances (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender Party and each
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed by any jurisdiction
on amounts payable under this Section 2.14, imposed on or paid by such Lender
Party or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender Party or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 9.02, the original or a certified copy of a receipt evidencing
such payment. In the case of any payment hereunder, under the Notes, in respect
of any Letters of Credit or in respect of any Bankers' Acceptances by or on
behalf of such Borrower through an account or branch outside the United States,
the United Kingdom and Canada or by or on behalf of such Borrower by a payor
that is not a United States person or a corporation organized under the laws of
the United Kingdom or Canada, if such Borrower determines that no Taxes are
payable in respect thereof, such Borrower shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel reasonably acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of subsections (d) and (e) of this
Section 2.14, the terms "United
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States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by any
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the Company with any
form or certificate that is required by any taxing authority, including, if
applicable, two original Internal Revenue Service forms 1001 or 4224 or (in the
case of a Lender Party that has certified in writing to the Administrative Agent
that it is not a "bank" as defined in Section 881(c)(3)(A) of the Internal
Revenue Code) form W-8 (and, if such Lender Party delivers a form W-8, a
certificate representing that such Lender Party is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Internal Revenue Code)), as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of Home Jurisdiction Withholding Taxes (as defined below) on
payments pursuant to this Agreement or the Notes or in respect of any Bankers'
Acceptances or, in the case of a Lender Party providing a form W-8, certifying
that such Lender Party is a foreign corporation, partnership, estate or trust.
If the forms provided by a Lender Party at the time such Lender Party first
becomes a party to this Agreement indicate a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender Party provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by
such forms; provided, however, that if, at the effective date of the Assignment
and Acceptance pursuant to which a Lender Party becomes a party to this
Agreement, the Lender Party assignor was entitled to payments under subsection
(a) of this Section 2.14 in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001, 4224 or W-8 (or the related certificate described above), that the
Lender Party reasonably considers to be confidential, the Lender Party shall
give notice thereof to the Borrowers and shall not be obligated to include in
such form or document such confidential information.
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"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company, withholding taxes imposed by the United States, (b) in the case of
HHEL and Rigby, withholding taxes imposed by the United Kingdom, (c) in the case
of the Canadian Borrower, withholding taxes imposed by Canada and (d) in the
case of Danmark, withholding taxes imposed by Denmark.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrowers with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.14 with respect to Taxes imposed by the United States, the
United Kingdom or Canada by reason of such failure; provided, however, that
should a Lender Party become subject to Taxes because of its failure to deliver
a form required hereunder, the Borrowers shall take such steps as such Lender
Party shall reasonably request to assist such Lender Party to recover such
Taxes.
(g) Each Lender Party shall promptly upon the request of the
Administrative Agent take all action (including without limitation the
completion of forms and the provision of information to the appropriate taxing
authorities or to the Administrative Agent), of the kind prescribed in
regulations promulgated under Section 118H of the U.K. Income and Corporation
Taxes Act of 1988 (and any statements published by the Inland Revenue relating
thereto and having general application) and consistent with such Lender Party's
legal and regulatory restrictions, reasonably requested by the Administrative
Agent, and the Administrative Agent shall upon reasonable request from any
Foreign Borrower make such request of each Lender Party and shall itself
(consistent with the Administrative Agent's legal and regulatory restrictions),
to the extent appropriate and reasonable, take similar action, to secure the
benefit of any exemption from, or relief with respect to, Taxes or Other Taxes
imposed by the United Kingdom under Section 118H of the U.K. Income and
Corporation Taxes Act of 1988 in relation to any amounts payable under this
Agreement.
(h) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use its reasonable best efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.15. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes and Bankers'
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Acceptances at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
Party at such time to (ii) the aggregate amount of the Obligations due and
payable to all Lender Parties hereunder and under the Notes and Bankers'
Acceptances at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Notes and Bankers'
Acceptances at such time obtained by all the Lender Parties at such time or (b)
on account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes and Bankers' Acceptances at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender Party at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes and Bankers' Acceptances at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lender
Parties hereunder and under the Notes and Bankers' Acceptances at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as the case may
be, as shall be necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be rescinded and
such other Lender Party shall repay to the purchasing Lender Party the purchase
price to the extent of such Lender Party's ratable share (according to the
proportion of (i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such recovery together
with an amount equal to such Lender Party's ratable share (according to the
proportion of (i) the amount of such other Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered; provided further that, so long as the
Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate Lenders. Each Borrower agrees that any Lender Party
so purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such an interest or participating interest, as the case may be, as fully as
if such Lender Party were the direct creditor of such Borrower in the amount of
such an interest or participating interest, as the case may be.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances,
Bankers' Acceptances and issuances of Letters of Credit shall be available (and
each Borrower agrees that it shall use such proceeds and Letters of Credit)
solely to pay transaction fees and expenses, refinance certain Existing Debt of
the Company, provide working capital for the Company and its Subsidiaries and
for other general corporate purposes permitted by this Agreement.
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SECTION 2.17. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to any Borrower and (iii) such
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower
may, so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of such Borrower to make such payment to or for the account of such
Defaulting Lender against the obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that, on any date, any Borrower shall so set off
and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be a Base Rate
Advance or a Local Rate Advance, as the case may be, and shall be considered,
for all purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally required to have
been made pursuant to Section 2.01, even if the other Advances comprising such
Borrowing shall be Eurocurrency Rate Advances or Bankers' Acceptances on the
date such Advance is deemed to be made pursuant to this subsection (a). Each
Borrower shall notify the Administrative Agent at any time such Borrower
exercises its right of set-off pursuant to this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the amount set off
and otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made by any
Borrower to or for the account of such Defaulting Lender which is paid by such
Borrower, after giving effect to the amount set off and otherwise applied by
such Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.17.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) any Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by such Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall
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be retained by the Administrative Agent or distributed by the Administrative
Agent to such other Agents or such other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time to
the Administrative Agent, such other Agents and such other Lender Parties and,
if the amount of such payment made by the applicable Borrower shall at such time
be insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing
to the Agents, ratably in accordance with such respective Defaulted
Amounts then owing to the Agents;
(ii) second, to the Issuing Banks and the Swing Line Bank for
any Defaulted Amounts then owing to them, in their capacities as such,
ratably in accordance with such respective Defaulted Amounts then owing
to such Issuing Banks and such Swing Line Bank; and
(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the applicable Borrower for the account of
such Defaulting Lender remaining, after giving effect to the amount applied by
the Administrative Agent pursuant to this subsection (b), shall be applied by
the Administrative Agent as specified in subsection (c) of this Section 2.17.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) any Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then such Borrower or such Agent or such other Lender Party shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with Citibank, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to
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the extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid and,
if the amount so held in escrow shall at any time be insufficient to make and
pay all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(i) first, to the Agents for any amounts then due and payable
by such Defaulting Lender to the Agents hereunder, ratably in
accordance with such amounts then due and payable to the Agents;
(ii) second, to the Issuing Banks and the Swing Line Bank for
any amounts then due and payable to them hereunder, in their capacities
as such, by such Defaulting Lender, ratably in accordance with such
amounts then due and payable to such Issuing Banks and such Swing Line
Bank;
(iii) third, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iv) fourth, to the applicable Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a Commitment
of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.17 are in addition to other rights and remedies that any Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Agent or any Lender Party may have against such Defaulting Lender
with respect to any Defaulted Amount.
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ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance to any Borrower (other
than Danmark) or of any Issuing Bank to issue a Letter of Credit on the occasion
of the Initial Extension of Credit hereunder is subject to the satisfaction of
the following conditions precedent before or concurrently with the Initial
Extension of Credit:
(a) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes (other than the Notes made by Danmark)
payable to the order of the Lenders.
(ii) A security agreement in substantially the form
of Exhibit D hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "Security
Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt
copies of proper financing statements, duly filed on
or before the day of the Initial Extension of Credit
under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Security Agreement,
covering the Collateral described in the Security
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing the financing statements referred
to in clause (B) above and all other effective
financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan
Party as debtor, together with copies of such other
financing statements,
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(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) evidence of the insurance required by
the terms of the Security Agreement,
(F) copies of the Assigned Agreements
referred to in the Security Agreement, together with
a consent to such assignment, in substantially the
form of Exhibit B to the Security Agreement, duly
executed by each party to such Assigned Agreements
other than the Loan Parties,
(G) the Pledged Account Letters referred to
in the Security Agreement, duly executed by each
Pledged Account Bank referred to in the Security
Agreement, and
(H) evidence that all other action that the
Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the
Security Agreement has been taken (including, without
limitation, receipt of duly executed payoff letters,
UCC-3 termination statements and landlords' and
bailees' waiver and consent agreements).
(iii) A guaranty in substantially the form of Exhibit
E hereto (together with each other guaranty and guaranty
supplement delivered by a Domestic Subsidiary pursuant to
Section 5.01(j), in each case as amended, the "Domestic
Subsidiary Guaranty"), duly executed by each Domestic
Subsidiary Guarantor and a guaranty in substantially the form
of Exhibit F hereto (together with each other guaranty and
guaranty supplement delivered by a Foreign Subsidiary pursuant
to Section 5.01(j), in each case as amended, the "Foreign
Subsidiary Guaranty") duly executed by each Foreign Subsidiary
Guarantor.
(iv) Deeds of trust, trust deeds and mortgages in
substantially the form of Exhibit G hereto and covering the
properties designated by an asterisk (*) and listed on
Schedule 4.01(w) hereto (together with the Assignments of
Leases and Rents referred to therein and each other mortgage
delivered pursuant to Section 5.01(j), in each case as
amended, the "Mortgages"), duly executed by the appropriate
Loan Party, together with:
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80
(A) evidence that counterparts of the
Mortgages have been duly recorded or delivered for
recording to the Company's title company on or before
the day of the Initial Extension of Credit in all
filing or recording offices that the Administrative
Agent may deem necessary or desirable in order to
create a valid first and subsisting Lien on the
property described therein in favor of the Collateral
Agent for the benefit of the Secured Parties and that
all filing and recording taxes and fees have been
paid,
(B) fully paid American Land Title
Association Lender's Extended Coverage (or
equivalent) title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements
and in amount acceptable to the Administrative Agent
(which amount shall not exceed the greater of the
amount of the Lien or the fair market value of the
property, issued, coinsured and reinsured by title
insurers acceptable to the Administrative Agent,
insuring the Mortgages to be valid first and
subsisting Liens on the property described therein,
free and clear of all material defects (including,
but not limited to, mechanics' and materialmen's
Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other
affirmative insurance (including endorsements for
future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable,
(C) the Assignments of Leases and Rents
referred to in the Mortgages, duly executed by the
appropriate Loan Party,
(D) evidence of the insurance required by
the terms of the Mortgages, and
(E) evidence that all other action that the
Administrative Agent may deem necessary or desirable
in order to create valid first and subsisting Liens
on the property described in the Mortgages has been
taken.
(v) A Canadian security agreement in substantially
the form of Exhibit H hereto (together with each other
Canadian security agreement and Canadian security agreement
supplement delivered pursuant to Section 5.01(j), in each case
as amended, the "Canadian Security Agreement"), duly executed
by each Loan Party organized under the laws of Canada,
together with evidence that all action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under the Canadian Security Agreement has been taken.
<PAGE> 87
81
(vi) A deed of charge, in substantially the form of
Exhibit I-1 (as amended, supplemented or otherwise modified in
accordance with its terms, the "Deed of Charge"), duly
executed by each of Handy & Harman UK Holdings Limited, HHEL
and Rigby, and a deed of charge over shares, in substantially
the form of Exhibit I-2 (as amended, supplemented or otherwise
modified in accordance with its terms, the "Deed of Charge
over Shares"), duly executed by Handy & Harman International,
Ltd. together with evidence that all actions that may be
necessary or desirable in order to improve, maintain, perfect
and protect the security intended to be created by or pursuant
to the Deed of Charge and the Deed of Charge over Shares,
respectively, have been taken.
(vii) Certified copies of the resolutions of the
Board of Directors of each Loan Party (other than Danmark)
approving the transactions contemplated by the Transaction
Documents and each Transaction Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to the
transactions contemplated by the Transaction Documents and
each Transaction Document to which it is or is to be a party.
(viii) A copy of a certificate of the applicable
regulatory authority of the jurisdiction of incorporation of
each Loan Party (other than Danmark), dated reasonably near
the date of the Initial Extension of Credit, certifying (to
the extent applicable) (A) as to a true and correct copy of
the charter of such Loan Party and each amendment thereto on
file in such office and (B) that (1) such amendments are the
only amendments to such Loan Party's charter on file in such
office, (2) such Loan Party has paid all franchise taxes to
the date of such certificate and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting
under the laws of the jurisdiction of its incorporation.
(ix) A copy of a certificate of the applicable
regulatory authority of each jurisdiction listed on Schedule
3.01(a)(ix), dated reasonably near the date of the Initial
Extension of Credit, stating (to the extent applicable) that
each Loan Party is duly qualified and in good standing as a
foreign corporation in such jurisdiction and has filed all
annual reports required to be filed to the date of such
certificate.
(x) A certificate of each Loan Party (other than
Danmark), signed on behalf of such Loan Party by its President
or a Vice President and its Secretary or any Assistant
Secretary, dated the date of the Initial Extension of Credit
(the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying
as to (A) the absence of any amendments to
<PAGE> 88
82
the charter of such Loan Party since the date of the
certificate referred to in Section 3.01(a)(viii), (B) a true
and correct copy of the bylaws of such Loan Party as in effect
on the date on which the resolutions referred to in Section
3.01(a)(vii) were adopted and on the date of the Initial
Extension of Credit, (C) the due incorporation and good
standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of
its incorporation, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the truth
of the representations and warranties contained in the Loan
Documents as though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event occurring
and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(xi) A certificate of the Secretary or an Assistant
Secretary of each Loan Party (other than Danmark) certifying
the names and true signatures of the officers of such Loan
Party authorized to sign each Transaction Document to which it
is or is to be a party and the other documents to be delivered
hereunder and thereunder.
(xii) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith as the Administrative Agent shall
request.
(xiii) Certificates, in substantially the form of
Exhibit J hereto, attesting to the Solvency of each Loan Party
before and after giving effect to and the transactions
contemplated by the Transaction Documents, from a Designated
Officer of such Loan Party.
(xiv) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have requested, including, without limitation,
information as to possible contingent liabilities, tax
matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with employees, audited
annual financial statements dated December 31, 1995, December
31, 1996 and December 31, 1997, interim financial statements
dated as of March 31, 1998, pro forma financial statements as
to the Company as at June 30, 1998 in the form of the
forecasts delivered pursuant to this clause (xiv) and
forecasts prepared by management of the Company, in form and
substance satisfactory to the Lender Parties, giving effect to
the transactions contemplated by the Transaction Documents,
the acquisition of the Company by WHX Corporation and the
precious metals dividend contemplated by Section
5.02(g)(i)(B), of balance sheets,
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83
income statements and cash flow statements on a monthly basis
for the first year following the day of the Initial Extension
of Credit and on an annual basis for each year thereafter
until the Final Maturity Date.
(xv) A letter, in form and substance satisfactory to
the Administrative Agent, from the Company to KPMG Peat
Marwick LLP, its independent certified public accountants,
advising such accountants that the Agents and the Lender
Parties have been authorized to exercise all rights of the
Company to require such accountants to disclose any and all
financial statements and any other information of any kind
that they may have with respect to the Company and its
Subsidiaries and directing such accountants to comply with any
reasonable request of any Agent or any Lender Party for such
information.
(xvi) Evidence of insurance naming the Collateral
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Lender Parties.
(xvii) A Borrowing Base Certificate.
(xviii) A favorable opinion of Olshan Grundman Frome
& Rosenzweig LLP, counsel for the Loan Parties, in
substantially the form of Exhibit K hereto and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xix) A favorable opinion of each of the counsel set
forth on Schedule 3.01(a)(xix), local counsel to the Loan
Parties in each of the jurisdictions set forth on such
Schedule, in substantially the form of Exhibit L hereto and as
to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xx) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(b) The Lender Parties shall be satisfied with the corporate
and legal structure and capitalization of the Company and each of its
Subsidiaries the capital stock of which Subsidiaries is being pledged
pursuant to the Loan Documents, including the terms and conditions of
the charter, bylaws and each class of capital stock or other equity
interest of the Company and each such Subsidiary and of each agreement
or instrument relating to such structure or capitalization.
<PAGE> 90
84
(c) The Lender Parties shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased
in full or otherwise satisfied and extinguished and that all Surviving
Debt shall be on terms and conditions satisfactory to the Lender
Parties.
(d) Before giving effect to and the transactions contemplated
by the Transaction Documents, there shall have occurred no material
adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Company and its
Subsidiaries taken as a whole since December 31, 1997.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of any Transaction Document or the
consummation of the transactions contemplated by the Transaction
Documents.
(f) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated by the
Transaction Documents shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lender Parties) and
shall remain in effect; all applicable waiting periods in connection
with the transactions contemplated by the Transaction Documents shall
have expired without any action being taken by any competent authority,
and no law or regulation shall be applicable in the judgment of the
Lender Parties, in each case that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated by the
Transaction Documents or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create
any Lien on, any properties now owned or hereafter acquired by any of
them.
(g) The Lender Parties shall have completed a due diligence
investigation of the Company and its Subsidiaries in scope, and with
results, satisfactory to the Lender Parties, and nothing shall have
come to the attention of the Lender Parties during the course of such
due diligence investigation to lead them to believe that the
Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of
the foregoing, the Lender Parties shall have been given such access to
the management, records, books of account, contracts and properties of
the Company and its Subsidiaries as they shall have requested.
(h) The Company shall have paid all accrued fees of the Agents
and the Lender Parties and all accrued expenses of the Agents
(including the accrued fees and expenses of counsel to the
Administrative Agent).
<PAGE> 91
85
(i) The Total Leverage Ratio shall not exceed 4.50:1.00.
SECTION 3.02. Conditions Precedent to Initial Borrowing by
Danmark. The obligation of each Multicurrency Lender to make an Advance to
Danmark shall be effective on and as of the date (the "Danmark Effective Date")
on which the Administrative Agent shall have received on or before such date the
following, each dated such day (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless otherwise specified)
and in sufficient copies for each Multicurrency Lender:
(i) A Danish security agreement in form and substance
reasonably satisfactory to the Administrative Agent (together
with each other Danish security agreement and Danish security
agreement supplement delivered pursuant to Section 5.01(j), in
each case as amended, the "Danish Security Agreement"), duly
executed by each Loan Party organized under the laws of
Denmark, together with evidence that all action that the
Administrative Agent may deem necessary or desirable in order
to perfect and protect the first priority liens and security
interests created under the Danish Security Agreement has been
taken.
(ii) Certified copies of the resolutions of the Board
of Directors of Danmark approving the transactions
contemplated by the Transaction Documents and each Transaction
Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to the transactions contemplated by the
Transaction Documents and each Transaction Document to which
it is or is to be a party.
(iii) A copy of a certificate of the applicable
regulatory authority of the jurisdiction of incorporation of
Danmark, dated reasonably near the Danmark Effective Date,
certifying (to the extent applicable) (A) as to a true and
correct copy of the charter of such Loan Party and each
amendment thereto on file in such Secretary's office and (B)
that (1) such amendments are the only amendments to such Loan
Party's charter on file in such office, (2) such Loan Party
has paid all franchise taxes to the date of such certificate
and (C) such Loan Party is duly incorporated and in good
standing or presently subsisting under the laws of the
jurisdiction of its incorporation.
(iv) A certificate of Danmark, signed on behalf of
such Loan Party by its President, a Vice President or a
director and its Secretary, any Assistant Secretary or any
other director, dated the Danmark Effective Date (the
statements made in which certificate shall be true on and as
of the Danmark Effective Date), certifying as to (A) the
absence of any amendments to the charter of such Loan
<PAGE> 92
86
Party since the date of the certificate referred to in Section
3.02(iii), (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions
referred to in Section 3.02(ii) were adopted and on the date
of the initial Advance to Danmark, (C) the due incorporation
and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of
its incorporation, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the truth
of the representations and warranties contained in the Loan
Documents as though made on and as of the Danmark Effective
and (E) the absence of any event occurring and continuing that
constitutes a Default.
(v) A certificate of the Secretary or an Assistant
Secretary of Danmark certifying the names and true signatures
of the officers of such Loan Party authorized to sign each
Transaction Document to which it is or is to be a party and
the other documents to be delivered hereunder and thereunder.
(vi) A favorable opinion of Nielsen & Koch Law
Office, counsel for the Loan Parties in Denmark, in form and
substance reasonably satisfactory to the Administrative Agent
and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(vii) A favorable opinion of Olshan Grundman Frome &
Rosenzweig LLP, counsel for the Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent
and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing, Drawing
and Issuance and Renewal. The obligation of each Appropriate Lender to make an
Advance or to purchase, accept or renew a Bankers' Acceptance (other than a
Letter of Credit Advance made by an Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving Credit
Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing (including
the initial Borrowing), and the obligation of each Issuing Bank to issue a
Letter of Credit (including the initial issuance) or renew a Letter of Credit
and the right of the Company to request a Swing Line Borrowing, shall be subject
to the further conditions precedent that on the date of such Borrowing, Drawing
or issuance or renewal (a) the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing, Notice of Drawing, Notice of
Swing Line Borrowing, Notice of Issuance or Notice of Renewal and the acceptance
by the applicable Borrower of the proceeds of such Borrowing or of such Letter
of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by such Borrower that both on the date of such
notice and on the date of such Borrowing, Drawing or issuance or renewal such
statements are true):
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87
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing, Drawing or issuance or renewal and to the
application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing,
Drawing or issuance or renewal, in which case as of such specific date;
(ii) no Default has occurred and is continuing, or would
result from such Borrowing, Drawing or issuance or renewal or from the
application of the proceeds therefrom;
(iii) for each Multicurrency Advance, Revolving Credit Advance
or Swing Line Advance made by the Swing Line Bank or issuance or
renewal of any Letter of Credit, the sum of the Loan Values of the
Eligible Collateral exceeds the aggregate principal amount of the
Multicurrency Advances plus Revolving Credit Advances plus Swing Line
Advances plus Letter of Credit Advances to be outstanding plus the
aggregate Available Amount of all Letters of Credit to be outstanding
after giving effect to such Advance or issuance or renewal,
respectively; and
(iv) for each Delayed Draw Advance, before and after giving
effect to such Borrowing, the Total Leverage Ratio shall not exceed
4.00:1.00 and the amount of the aggregate principal amounts of Delayed
Draw Borrowings shall not exceed the amount of Investments permitted
under Section 5.02(f)(viii) immediately prior to such Delayed Draw
Advance.
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing or a Drawing,
such Lender Party shall not have made available to the Administrative Agent such
Lender Party's ratable portion of such Borrowing or Drawing.
<PAGE> 94
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (other than
Inactive Subsidiaries) (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of the Company has been validly
issued, is fully paid and non-assessable and is owned by WHX
Corporation free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all of each Loan Party's Subsidiaries (other than Inactive
Subsidiaries) has been validly issued, is fully paid and non-assessable
and is owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the Collateral
Documents.
(c) The execution, delivery and performance by each Loan Party
of each Transaction Document to which it is or is to be a party, and
the consummation of the transactions contemplated by the Transaction
Documents, are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i)
contravene such Loan Party's charter or bylaws, (ii) violate any law,
rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default under, any
loan agreement, indenture or mortgage or any material contract, deed of
trust, lease or other
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89
instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which
would be reasonably likely to have a Material Adverse Effect.
(d) Other than the filings contemplated to be made pursuant to
Section 3.01, no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of any
Transaction Document to which it is or is to be a party, or for the
consummation of the transactions contemplated by the Transaction
Documents, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by
any Agent or any Lender Party of its rights under the Loan Documents or
the remedies in respect of the Collateral pursuant to the Collateral
Documents.
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and each
other Transaction Document when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms,
except as such enforceability may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of any Transaction Document or the
consummation of the transactions contemplated by the Transaction
Documents.
(g) The Consolidated balance sheets of the Company and its
Subsidiaries as at December 31, 1997, and the related Consolidated
statements of income and Consolidated statement of cash flows of the
Company and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of KPMG Peat Marwick, independent
public accountants, and the Consolidated balance sheets of the Company
and its Subsidiaries as
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90
at June 30, 1998, and the related Consolidated statements of income and
Consolidated statement of cash flows of the Company and its
Subsidiaries for the six months then ended, duly certified by a
Designated Officer of the Company, copies of which have been furnished
to each Lender Party, fairly present, subject, in the case of said
balance sheet as at June 30, 1998, and said statements of income and
cash flows for the six months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Company and
its Subsidiaries as at such dates and the Consolidated results of
operations of the Company and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis, and since December 31, 1997,
there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheets of the Company
and its Subsidiaries as at June 30, 1998, and the related Consolidated
pro forma statements of income and cash flows of the Company and its
Subsidiaries for the six months then ended, certified by a Designated
Officer of the Company, copies of which have been furnished to each
Lender Party, fairly present the Consolidated pro forma financial
condition of the Company and its Subsidiaries as at such date and the
Consolidated pro forma results of operations of the Company and its
Subsidiaries for the period ended on such date, in each case giving
effect to the transactions contemplated by the Transaction Documents,
the acquisition of the Company by WHX Corporation and the precious
metals dividend contemplated by Section 5.02(g)(i)(B), all in
accordance with GAAP.
(i) The Consolidated and, as to the five business segments of
the Company, consolidating, forecasted balance sheets, statements of
income and statements of cash flows of the Company and its Subsidiaries
delivered to the Lender Parties pursuant to Section 3.01(a)(xiv) or
5.03 were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions
existing at the time of delivery of such forecasts, and represented, at
the time of delivery, the Company's best estimate of its future
financial performance (it being understood that the Company can give no
assurance that future performance will equal the forecasts or that the
results of operations will not differ substantially therefrom).
(j) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of any Loan
Party to any Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the
terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(k) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance, any Drawing or
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drawings under any Letter of Credit will be used to purchase or carry
any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by any Borrower,
nor the consummation of the other transactions contemplated by the
Transaction Documents, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that would be reasonably likely to have a Material Adverse
Effect.
(n) After giving effect to the filings contemplated to be made
pursuant to Section 3.01, the Collateral Documents create a valid and
perfected first priority security interest in the Collateral, securing
the payment of the Secured Obligations, and all filings and other
actions necessary or desirable to perfect and protect such security
interest have been duly taken. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except
for the liens and security interests created or permitted under the
Loan Documents.
(o) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(ii) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
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(iv) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
exceeding $4,000,000 to any Multiemployer Plan.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
(q) (i) Except as otherwise set forth on Part I of Schedule
4.01(q) hereto, the operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, and no
circumstances exist that would be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
material restrictions on ownership, occupancy, use or transferability
under any Environmental Law.
(ii) Except as otherwise set forth on Part II of Schedule
4.01(q) hereto, none of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or, to the best of its knowledge, is
adjacent to any such property; there are no and never have been any
underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are
being or have been treated, stored or disposed on any property
currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly
owned or operated by any Loan Party or any of its Subsidiaries; there
is no asbestos or asbestos-containing material on any property
currently owned or operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries, except as
would not be reasonably expected to result in a liability in excess of
$250,000 in any Fiscal Year.
(iii) Except as otherwise set forth on Part III of Schedule
4.01(q) hereto, neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the
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requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in liability to any Loan Party or any of
its Subsidiaries that would be material to the Company and its
Subsidiaries taken as a whole.
(r) (i) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes, together with applicable interest and
penalties, shown thereon to be due.
(ii) Set forth on Schedule 4.01(r) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party and each of its Subsidiaries and Affiliates for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "Open Year").
(iii) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries and Affiliates proposed by the Internal
Revenue Service with respect to Open Years does not exceed $1,000,000.
No issues have been raised by the Internal Revenue Service in respect
of Open Years that, in the aggregate, would be reasonably likely to
have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries and Affiliates proposed by all state, local
and foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns) does not exceed $1,000,000.
No issues have been raised by such taxing authorities that, in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
(s) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that would be reasonably
likely to have a Material Adverse Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the date hereof the obligor and the principal amount outstanding
thereunder other than Debt in the aggregate principal amount not
exceeding $100,000.
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(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
obligor and the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor other than Debt in
the aggregate principal amount not exceeding $100,000.
(v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all Liens on the property or assets of any Loan Party
or any of its Subsidiaries, showing as of the date hereof the
lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets subject thereto other than Liens
covering property with a fair market value in the aggregate not
exceeding $100,000.
(w) Set forth on Schedule 4.01(w) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of
its Subsidiaries (other than Inactive Subsidiaries), showing as of the
date hereof the street address, county or other relevant jurisdiction,
state and record owner thereof other than real property with a fair
market value in the aggregate not exceeding $100,000. Each Loan Party
or such Subsidiary has good, marketable and insurable fee simple title
to such real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries (other than Inactive Subsidiaries) is the
lessee, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, lessor, lessee, expiration date and
annual rental cost thereof other than leases with annual rental
payments in the aggregate not exceeding $100,000. Each such lease is
the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.
(y) Set forth on Schedule 4.01(y) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof other than
Investments with a fair market value in the aggregate not exceeding
$100,000.
(z) Set forth on Schedule 4.01(z) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries required in the operation of
its business, showing as of the date hereof the jurisdiction in which
registered, the registration number, the date of registration and the
expiration date.
(aa) The Company has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those materially affected by suppliers, vendors
and customers) that could be materially adversely affected by the
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95
"Year 2000 Problem" (that is, the risk that computer applications used
by the Company or any of its Subsidiaries may be unable to recognize
and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) used its
reasonable efforts to develop a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented in
all material respects that plan in accordance with that timetable.
Based on the foregoing, the Company believes that all computer
applications that are material to its and its Subsidiaries' business
and operations are reasonably expected on a timely basis to be able to
perform properly date-sensitive functions for all dates before and
after January 1, 2000 (that is, be "Year 2000 compliant"), except to
the extent that a failure to do so could not reasonably be expected to
have Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit or Bankers' Acceptance shall be outstanding or any
Lender Party shall have any Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970 except to the extent the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither such Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that (x) is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other
creditors or (y) to the extent that the aggregate of all such taxes,
charges or claims do not exceed $100,000.
(c) Compliance with Environmental Laws. (i) Comply, and cause
each of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply with all applicable Environmental
Laws and Environmental Permits; obtain and
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renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
(ii) conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws, except in the case of each of
the foregoing clauses (i) and (ii) where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided,
however, that neither such Borrower nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that such Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(d)
and provided further that neither any Borrower nor any of its
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of such
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries taken as a whole and that the loss thereof
is not disadvantageous in any material respect to the Company and its
Subsidiaries taken as a whole or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to
time with prior notice to the Company (other than during the
continuance of a Default), permit any of the Agents or any of the
Lender Parties, or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account
of, and visit the properties of, such Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of such
Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such
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Subsidiary in accordance with generally accepted accounting principles
in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
material properties that are then used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to such Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate except that, so long as no
Default shall have occurred and be continuing at the time of any
payment described below or would result therefrom:
(i) the Company may pay management fees to WHX or its
Affiliates not in excess of $1,000,000 in any Fiscal Year in
accordance with the Management Agreement,
(ii) the Company and its Subsidiaries may make
payments in accordance with the Tax Agreement provided that
both before and after giving effect to such payments the
Senior Leverage Ratio shall not be greater than 4.50:1.00,
(iii) the Company and its Subsidiaries may pay fees
to their respective directors,
(iv) the Company and its Subsidiaries may each make
pension plan contribution payments in respect of their
proportionate share of the cost of such contributions under
the relevant plans,
(v) the Company may pay dividends to WHX Corporation
or its wholly-owned Subsidiaries permitted by Section 5.02(g),
(vi) the Company and its Subsidiaries may prepay
Subordinated Debt as permitted by section 5.02(k), and
(vii) other transactions with Affiliates to the
extent not included in (i) through (vi) above provided that
the amounts payable by the Loan Parties in connection with
such transactions shall not in the aggregate exceed $1,000,000
in any Fiscal Year.
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(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Collateral Agent following the occurrence and
during the continuance of a Default, (y) the formation or acquisition
of any new direct or indirect Subsidiaries by any Loan Party other than
an Inactive Subsidiary or (z) the acquisition of any property
(including, without limitation, any interest in joint ventures) by any
Loan Party, other than property that, in the judgment of the Collateral
Agent, shall not be material or shall not already be subject to a
perfected first priority security interest in favor of the Collateral
Agent for the benefit of the Secured Parties, then such Borrower shall,
in each case at such Borrower's expense:
(i) in connection with the formation or acquisition
of a Subsidiary other than an Inactive Subsidiary, within 10
days after such formation or acquisition, cause each such
Subsidiary, and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly execute
and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties' (in the
case of the formation or acquisition of a Domestic Subsidiary)
or the Foreign (other than any such liabilities in respect of
renewals or replacements of existing leases in amounts not in
excess of those payable under existing leases) Borrowers' and
Foreign Subsidiaries' (in the case of the formation or
acquisition of a Foreign Subsidiary) obligations under the
Loan Documents,
(ii) within 10 days after such request, formation or
acquisition, furnish to the Collateral Agent a description of
the real and personal properties of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the
Collateral Agent,
(iii) within 15 days after such request, formation or
acquisition, duly execute and deliver, and cause each such
Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to duly execute and
deliver, to the Collateral Agent mortgages, pledges,
assignments, security agreement supplements and other security
agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all
the Obligations of the applicable Loan Party, such Subsidiary
or such parent, as the case may be, under the Loan Documents
and constituting Liens on all such properties,
(iv) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary or such parent to
take, whatever action (including, without limitation, the
recording of mortgages, the filing of Uniform Commercial
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Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Collateral Agent to vest in
the Collateral Agent (or in any representative of the
Collateral Agent designated by it) valid and subsisting Liens
on the properties purported to be subject to the mortgages,
pledges, assignments, security agreement supplements and
security agreements delivered pursuant to this Section
5.01(j), enforceable against all third parties in accordance
with their terms,
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request
of the Collateral Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Collateral Agent and
the other Secured Parties, of counsel for the Loan Parties
acceptable to the Collateral Agent as to the matters contained
in clauses (i), (iii) and (iv) above, as to such guaranties,
guaranty supplements, mortgages, pledges, assignments,
security agreement supplements and security agreements being
legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties,
and as to such other matters as the Collateral Agent may
reasonably request,
(vi) as promptly as practicable after such request,
formation or acquisition, deliver, upon the request of the
Collateral Agent in its sole discretion, to the Collateral
Agent with respect to each parcel of real property owned or
held by the entity that is the subject of such request,
formation or acquisition, such title reports, as the
Collateral Agent may request, in scope, form and substance
satisfactory to the Collateral Agent, provided, however, that
to the extent that any Loan Party or any of its Subsidiaries
shall have otherwise received title reports, surveys and
engineering, soils and other reports, and environmental
assessment reports with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered
to the Collateral Agent,
(vii) upon the occurrence and during the continuance
of a Default, promptly cause to be deposited any and all cash
dividends paid or payable to it or any of its Subsidiaries
from any of its Subsidiaries from time to time into the Cash
Collateral Account, and with respect to all other dividends
paid or payable to it or any of its Subsidiaries from time to
time, promptly execute and deliver, or cause such Subsidiary
to promptly execute and deliver, as the case may be, any and
all further instruments and take or cause such Subsidiary to
take, as the case may be, all such other action as the
Collateral Agent may deem necessary or desirable in order to
obtain and maintain from and after the time such dividend is
paid or
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payable a perfected, first priority lien on and security
interest in such dividends, and
(viii) at any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as the Collateral
Agent may reasonably deem necessary in obtaining the full
benefits of, or in perfecting and preserving the Liens of,
such guaranties, mortgages, pledges, assignments, security
agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by any
Agent, or any Lender Party through the Administrative Agent, correct,
and cause each of its Subsidiaries promptly to correct, any material
defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by the Collateral Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as the Collateral Agent may reasonably
require from time to time in order to (A) carry out more effectively
the purposes of the Loan Documents, (B) to the fullest extent permitted
by applicable law, subject any Loan Party's or any of its Subsidiaries'
properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) perfect
and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the
Secured Parties under any Loan Document or under any other instrument
executed in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party, and cause each of
its Subsidiaries to do so.
(l) Performance of Related Documents. Perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms
and provisions of each Related Document to be performed or observed by
it, maintain each such Related Document in full force and effect,
enforce such Related Document in accordance with its terms, take all
such action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Related Document such demands and
requests for information and reports or for action as any Loan Party or
any of its Subsidiaries is entitled to make under such Related
Document.
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(m) Preparation of Environmental Reports. At the request of
the Administrative Agent or the Collateral Agent from time to time
after the occurrence and during the continuance of a Default, provide
to the Lender Parties within 60 days after such request, at the expense
of the Company, an environmental site assessment report for any of its
or its Subsidiaries' properties described in such request, prepared by
an environmental consulting firm acceptable to the Administrative Agent
or the Collateral Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance, removal
or remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Administrative Agent or the Collateral Agent determine at any time that
a material risk exists that any such report will not be provided within
the time referred to above, the Administrative Agent or the Collateral
Agent may retain an environmental consulting firm to prepare such
report at the expense of the Company, and the Company hereby grants and
agrees to cause any Subsidiary that owns any property described in such
request to grant at the time of such request to the Agents, the Lender
Parties, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to
enter onto their respective properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which such Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or canceled, notify the Administrative Agent of any default
by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
(o) Cash Concentration Accounts. Maintain, and cause each of
its Subsidiaries to maintain, main cash concentration accounts with The
Bank of New York or one or more banks acceptable to the Collateral
Agent that have accepted the assignment of such accounts to the
Collateral Agent for the benefit of the Secured Parties pursuant to the
Security Agreement.
(p) Interest Rate Hedging. Enter into prior to September 30,
1998, and maintain at all times thereafter, interest rate Hedge
Agreements with Persons acceptable to the Administrative Agent,
covering a notional amount of not less than $125,000,000 and providing
for such Persons to make payments thereunder for a period of no less
than three years to the extent of increases in interest rates based on
greater than 1.5% above the weighted average Eurocurrency Rate for
$1,000,000 for an Interest Period of three months on the date thereof.
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(q) Conditions Subsequent. (i) Deliver to the Administrative
Agent on or before September 30, 1998 American Land Title Association
form surveys, dated no more than 30 days before the day of the Initial
Extension of Credit, certified to the Administrative Agent and the
issuer of the Mortgage Policies described in Section 3.01(a)(iv) in a
manner satisfactory to the Administrative Agent by a land surveyor duly
registered and licensed in the States in which the property described
in such surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces, rights of
way, building set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects
acceptable to the Administrative Agent.
(ii) Deliver to the Administrative Agent on or before
August 31, 1998 the Pledged Account Letters referred to in the Security
Agreement, duly executed by the Pledged Account Bank referred to in the
Security Agreement or, if the Company is unable to deliver such Pledged
Account Letter on or before August 31, 1998, on or before November 30,
1998, transfer the Pledged Account to another financial institution and
deliver to the Administrative Agent a Pledged Account Letter from such
other financial institution.
(iii) Deliver to the Administrative Agent on or
before August 31, 1998 evidence that the Articles of Association of
HHEL, Rigby and Handy & Harman UK Holdings Limited have been amended in
a manner satisfactory to the Administrative Agent and that such
amendments have been filed with the Registrar of Companies in England
and Wales.
(iv) Deliver to the Administrative Agent on or before
September 30, 1998 a Schedule setting forth the book and estimated fair
value of each parcel of real property listed on Schedule 4.01(w).
(v) Deliver to the Administrative Agent (A) on or
before August 31, 1998 (1) evidence that the precious metals and the
commodity contracts have been deposited into separate accounts at one
or more securities intermediary and (2) a copy of a securities account
notification and control agreement and a copy of a commodity account
notification and control agreement, each in form and substance
reasonably satisfactory to the Administrative Agent and executed by
Merrill Lynch or (B) if the Company is unable to deliver such
agreements on or before August 31, 1998, deliver to the Administrative
Agent on or before October 31, 1998 evidence that the precious metals
and the commodities contracts have been transferred to another
securities intermediary and a securities account notification and
control agreement and a commodity account
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notification and control agreement in form and substance reasonably
satisfactory to the Administrative Agent and executed by such other
securities intermediary.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit or Bankers' Acceptance shall be outstanding or any
Lender Party shall have any Commitment hereunder, no Borrower will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code or similar legislation of any jurisdiction, a
financing statement that names such Borrower or any of its Subsidiaries
as debtor, or sign or suffer to exist, or permit any of its
Subsidiaries to sign or suffer to exist, any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule 4.01(v) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by such Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment
to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition or at the
time the Person owning such property or equipment became a
Subsidiary (other than any such Liens created in contemplation
of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this
<PAGE> 110
104
clause (iv) shall not exceed the amount permitted under
Section 5.02(b)(iii)(B) at any time outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(C); provided that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vi) Liens arising in connection with a Precious
Metals Leasing as contemplated by the Intercreditor Agreement;
(vii) other Liens securing Debt outstanding in an
aggregate principal amount not to exceed $10,000,000, provided
that no such Lien shall extend to or cover any Collateral;
(viii) the replacement, extension or renewal of any
Lien permitted by clauses (iii) and (v) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby;
(ix) Liens securing the performance of bids, tenders,
leases, contracts (other than for the repayment of borrowed
currency), statutory obligations, surety and appeal bonds and
other obligation of like nature, incurred in the ordinary
course of business, and judgment liens not constituting a
Default under Section 6.01;
(x) Zoning restrictions, easements, waiver,
reservations, restrictions on the use of real property or
minor irregularities incident thereto which do not in the
aggregate detract from the value or use of any material
property or from the property of the Company and its
Subsidiaries taken as a whole; and
(xi) Liens incurred in connection with transactions
of the type described in clause (d) of the definition of Cash
Equivalents in an aggregate amount not to exceed $5,000,000.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of the Company:
(A) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest
rates incurred in the ordinary course of
<PAGE> 111
105
business and consistent with prudent business
practice with the aggregate notional amount thereof
not to exceed $175,000,000 at any time outstanding;
(B) Subordinated Debt maturing at least 12
months later than the Final Maturity Date that is
issued:
(1) to WHX Corporation or its
Subsidiaries on terms substantially as set
forth in Exhibit N hereto for the purposes
of permitting the Company to comply with the
financial covenants set forth in Section
5.04; provided that such Subordinated Debt
is incurred prior to the date of delivery of
financial statements pursuant to Section
5.03(b) or (c) evidencing any Default under
Section 5.04 and provided further, that
before incurring any such Debt, a Designated
Officer of the Company shall deliver to the
Administrative Agent a certificate
demonstrating compliance, on a pro forma
basis after giving effect to the incurrence
of any such Debt, with all such covenants as
at the end of the immediately preceding
fiscal quarter of the Company; or
(2) to any Person on terms,
including as to interest and subordination,
at the time of issuance, comparable to that
offered in the capital markets generally to
companies of comparable size and
creditworthiness; provided, that before
incurring any such Debt, a Designated
Officer of the Company shall deliver to the
Administrative Agent a certificate
demonstrating compliance, on a pro forma
basis after giving effect to the incurrence
of any such Debt, with the Senior Leverage
Ratio and the Total Leverage Ratio as at the
end of the immediately preceding fiscal
quarter of the Company;
(ii) in the case of any Subsidiary of the Company,
Debt owed to the Company or to a wholly owned Subsidiary of
the Company, provided that, in each case, such Debt (x) shall,
in the case of Debt owed to a Loan Party, constitute Pledged
Debt and (y) shall be evidenced by promissory notes in form
and substance satisfactory to the Administrative Agent and
such promissory notes shall, in the case of Debt owed to a
Loan Party, be pledged as security for the Obligations of the
holder thereof under the Loan Documents to which such holder
is a party and delivered to the Collateral Agent pursuant to
the terms of the Security Agreement; and
<PAGE> 112
106
(iii) in the case of the Company and its
Subsidiaries:
(A) Debt under the Loan Documents;
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate
$10,000,000 at any time outstanding;
(C) Capitalized Leases not to exceed in the
aggregate $10,000,000 at any time outstanding;
(D) the Surviving Debt, and any Debt
extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt
included in Part I of Schedule 4.01(u), provided that
the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are not otherwise prohibited by the Loan Documents,
provided further that the principal amount of such
Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall
not be changed, as a result of or in connection with
such extension, refunding or refinancing;
(E) Debt of any Person that becomes a
Subsidiary of the Company after the date hereof in
accordance with the terms of Section 5.02(f) that is
existing at the time such Person becomes a Subsidiary
of the Company (other than Debt incurred solely in
contemplation of such Person becoming a Subsidiary of
the Company);
(F) Letters of Credit issued for the account
of any Foreign Subsidiary of the Company to support
obligations in respect of value added taxes, in an
aggregate available amount of such letters of credit
plus reimbursement obligations thereunder not to
exceed $7,500,000 at any time outstanding;
(G) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in foreign
exchange rates or commodity prices incurred in the
ordinary course of business and consistent with
prudent business practice;
(H) Debt owing to any Lender in respect of
any overdraft facility, cash management service or in
connection with any automated
<PAGE> 113
107
clearing house transfers of funds of the Company or
any of its Subsidiaries in an aggregate amount
outstanding at any time not to exceed $6,500,000;
(I) Contingent Obligations incurred in
connection with transactions permitted under Sections
5.02(d) and 5.02(f)(viii) (other than any such
Contingent Obligations created in contemplation of
any such transaction);
(J) current liabilities in respect of taxes,
assessments and governmental charges or levies
incurred, or claims for labor, materials, inventory,
services, supplies and rentals incurred, or for goods
or services purchased, in the ordinary course of
business;
(K) Debt arising under surety, payment or
performance bond reimbursement obligation entered
into in the ordinary course of business;
(L) Debt arising under any appeal
reimbursement bond obligation entered into with
respect to any judgment not constituting a Default
under Section 6.01;
(M) Debt incurred in connection with
transactions described in clause (d) of the
definition of Cash Equivalents; and
(N) Debt not otherwise permitted under this
Section 5.02(b) in an aggregate principal amount not
to exceed $15,000,000 at any time outstanding.
(c) Change in Nature of Business. Make, with respect to the
Company and its Subsidiaries taken as a whole, any material change in
the nature of its business as a diversified manufacturing company.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that:
(i) any Subsidiary of the Company may merge into or
consolidate with the Company or any other Subsidiary of the
Company, provided that (A) in the case of any such merger or
consolidation, the Person formed by such merger or
consolidation shall be the Company or a wholly owned
Subsidiary of the Company (or, if the merger or consolidation
shall relate to two less than wholly owned Subsidiaries of the
Company, the surviving Subsidiary shall be owned by the
Company to the same or greater extent immediately following
such transaction as
<PAGE> 114
108
was owned by the Company immediately prior to such
transaction), (B) in the case of any such merger or
consolidation to which a Domestic Subsidiary Guarantor is a
party, the Person formed by such merger or consolidation shall
be a Domestic Subsidiary Guarantor, (C) in the case of any
merger or consolidation to which one Foreign Subsidiary
Guarantor is a party, the Person formed by such merger or
consolidation shall be such Foreign Subsidiary Guarantor
(unless the other party is a Domestic Subsidiary Guarantor in
which case clause (B) above shall apply and (D) in the case of
any such merger or consolidation to which two or more Foreign
Subsidiary Guarantors are a party, each such Foreign
Subsidiary shall be organized under the laws of one country
and the Person formed by such merger or consolidation shall be
a Foreign Subsidiary Guarantor organized under the laws of
such country;
(ii) in connection with any acquisition permitted
under Section 5.02(f), any Subsidiary of the Company may merge
into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided that the
Person surviving such merger shall be a wholly owned
Subsidiary of the Company (or, if the merger or consolidation
shall relate to two less than wholly owned Subsidiaries of the
Company, the surviving Subsidiary shall be owned by the
Company to the same or greater extent immediately following
such transaction as was owned by the Company immediately prior
to such transaction); and
(iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause
(ii) thereof), any Subsidiary of the Company may merge into or
consolidate with any other Person or permit any other Person
to merge into or consolidate with it;
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a
Default.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets other than Inventory
to be sold in the ordinary course of its business, except:
(i) sales or dispositions of Inventory in the
ordinary course of its business, assets which have become
obsolete or assets of Inactive Subsidiaries;
(ii) in a transaction authorized by Section 5.02(d);
<PAGE> 115
109
(iii) sales of assets for fair value in an aggregate
amount not to exceed $90,000,000 from the date hereof,
provided that in the case of sales of assets pursuant to this
clause (iii), the Company shall prepay the Advances pursuant
to, and in the amount, on the date and in the order of
priority set forth in Section 2.07(b)(ii)(A), as specified
therein;
(iv) sales, leases, transfers or other dispositions
of assets not constituting a sale and leaseback by the Company
or any wholly-owned Domestic Subsidiary of the Company to any
Foreign Subsidiary of the Company, in an aggregate amount not
to exceed $2,500,000, or to the Company or any other
wholly-owned Domestic Subsidiary of the Company;
(v) sales, leases, transfers or other dispositions of
assets not constituting a sale and leaseback by any Foreign
Borrower or any wholly-owned Subsidiary of a Foreign Borrower
to the Company or any wholly owned Subsidiary of the Company
or to any other Foreign Borrower or wholly-owned Subsidiary of
a Foreign Borrower;
(vi) so long as no Default is existing or would
result therefrom, (x) sale of assets for fair value in
connection with trade-in for replacements of existing assets
and (y) sale and leaseback transactions involving property
having a fair market value at the time of such sale and
leaseback aggregating not more than $5,000,000 in any Fiscal
Year;
(vii) sales of assets incurred in connection with
transaction of the type described in clause (d) of the
definition of Cash Equivalents; and
(viii) sales, leases, transfers or other dispositions
of assets for cash and for fair value not otherwise permitted
by clauses (i)-(vii) above, provided that in the case of sales
of assets pursuant to this clause (viii), the Company shall,
on the date of receipt by any Loan Party or any of its
Subsidiaries of the Net Cash Proceeds from such sale, lease,
transfer or disposition, prepay the Advances pursuant to, and
in the amount and order of priority set forth in, Section
2.07(b)(ii)(B), as specified therein;
provided that sales and other dispositions of assets made in accordance
with clauses (iii) and (viii) above shall be made for not less than 75%
cash consideration with the remainder of the consideration to consist
of promissory notes or marketable securities for which all actions
contemplated by Section 5.01(j) shall be taken.
<PAGE> 116
110
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) Investments by the Company and its Domestic
Subsidiaries in their Domestic Subsidiaries existing on the
date hereof and additional Investments in Domestic
Subsidiaries;
(ii) Investments by the Company and its Subsidiaries
in their Foreign Subsidiaries outstanding on the date hereof
and additional investments in (except for directors'
qualifying shares) wholly owned Foreign Subsidiaries in an
aggregate amount invested from the date hereof not to exceed
$10,000,000;
(iii) loans and advances to employees in the ordinary
course of the business of the Company and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $2,000,000 at any time outstanding;
(iv) Investments by the Company and its Subsidiaries
in Cash Equivalents provided that amounts in excess of
$5,000,000 shall be held by the Collateral Agent or be subject
to a first priority perfected lien in favor or the Collateral
Agent;
(v) Investments existing on the date hereof and
described on Schedule 4.01(y) hereto;
(vi) Investments by the Company and its Subsidiaries
in Hedge Agreements permitted under Section 5.02(b)(i) or
5.02(b)(iii)(H);
(vii) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(ii); and
(viii) other Investments in an aggregate amount
invested in connection with joint ventures and newly acquired
Subsidiaries; provided that with respect to Investments made
under this clause (viii):
(1) any newly acquired or organized Subsidiary of the
Company or any of its Subsidiaries shall be not less than 80%
owned (directly or indirectly) by the Company in the case of
any Domestic Subsidiary and not less than 90% owned (directly
or indirectly) by the Company in the case of any Foreign
Subsidiary;
(2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom;
<PAGE> 117
111
(3) any company or business acquired or invested in
pursuant to this clause (viii) shall be, directly or
indirectly, in a basic manufacturing business;
(4) immediately after giving effect to the
acquisition of a company or business pursuant to this clause
(viii), the Company shall be in pro forma compliance with the
covenants contained in Section 5.04, calculated based on the
financial statements most recently delivered to the Lender
Parties pursuant to Section 5.03 and as though such
acquisition had occurred at the beginning of the four-quarter
period covered thereby, as evidenced by a certificate of a
Designated Officer of the Company delivered to the Lender
Parties demonstrating such compliance; provided however, that,
notwithstanding the foregoing, the Company and its
Subsidiaries may make additional Investments to the extent
that such pro forma calculation indicates a Senior Leverage
Ratio of not more than 4.00:1.00 and a Total Leverage Ratio of
not more than 4.75:1.00; and
(5) the Company and its Subsidiaries shall comply
with the requirements of Section 5.01(j); and
(ix) Investments in accounts, contract rights,
chattel paper (each as defined in the Uniform Commercial
Code), notes receivable and similar items arising or acquired
in the ordinary course of business.
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock or accept any
capital contributions, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any capital stock of the
Company or any warrants, rights or options to acquire such capital
stock or to issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described in clause (i), (ii) or (iii) below or would result therefrom:
(i) the Company may (A) declare and pay dividends and
distributions payable only in common stock of the Company, (B)
on or before July 30, 1999, declare and pay dividends payable
in and make distributions of Precious Metal Inventory
reflected on Schedule 5.02(g), (C) declare and pay dividends
or make other payments required to be made under the Tax
Agreement, provided that with
<PAGE> 118
112
respect to any dividends declared and paid under this clause
(C), both before and after such declaration and payment the
Total Leverage Ratio shall not be greater than 4.50:1.00, (D)
declare and pay cash dividends in an amount in any Fiscal Year
in an amount, together with any payments made pursuant to
Section 5.02(k)(iii), that is equal to a percentage of the
Excess Cash Flow for the immediately preceding Fiscal Year as
follows: (1) if the Total Leverage Ratio as at the time of
such declaration is equal to or greater than 4.00:1.00, 12.5%
and (2) if the Total Leverage Ratio as at the time of such
declaration is less than 4.00:1.00 but equal to or greater
than 3.50:1.00, 25%, provided that for the Fiscal Year ending
December 31, 1998, such Excess Cash Flow shall be determined
for the period from April 13, 1998 through December 31, 1998,
and (E) declare and pay cash dividends if the Total Leverage
Ratio as at the time of such declaration and after giving
effect to such payment under this clause (E) and any payment
made pursuant to Section 5.02(k)(iv) is less than 3.50:1.00;
(ii) any Subsidiary of the Company may (A) declare
and pay cash dividends to the Company, (B) declare and pay
cash dividends to any other wholly owned Subsidiary of the
Company of which it is a Subsidiary and (C) accept capital
contributions from its parent to the extent permitted under
Section 5.01(f)(i); and
(iii) the Company and any Subsidiary may issue or
sell capital stock and/or warrants, rights or options to
acquire capital stock (A) to the Company or any other
Subsidiary or (B) in connection with transaction permitted by
Section 5.02(d) hereof.
provided, however, the Company may issue or sell capital stock to WHX
Corporation or any of its Subsidiaries to permit the Company to comply
with the Senior Leverage Ratio or the Total Leverage Ratio, subject to
the provisions of Section 6.01(c).
(h) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee (i) for the rental or hire
of real or personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease (other than
Capitalized Leases) having an original term of one year or more that
would cause the direct and contingent liabilities of the Company and
its Subsidiaries, on a Consolidated basis, in respect of all such
obligations to exceed $10,000,000 payable in any period of 12
consecutive months in respect of the Precious Metals Leasing and
$13,000,000 payable in any period of 12 consecutive months in respect
of all other leases.
<PAGE> 119
113
(i) Amendments of Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents other than changes which could
not reasonably be expected to have a Material Adverse Effect.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required by generally accepted
accounting principles, or (ii) its Fiscal Year.
(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Surviving Debt or Subordinated Debt, except (i) refinancings of
any Surviving Debt in accordance with Section 5.02(b)(iii)(D), (ii)
regularly scheduled or required repayments or redemptions of Surviving
Debt, (iii) prepayments of Subordinated Debt in any Fiscal Year in an
amount, together with any dividends made pursuant to Section
5.02(g)(i)(D), that is equal to a percentage of the Excess Cash Flow
for the immediately preceding Fiscal Year as follows: (1) if the Total
Leverage Ratio as at the time of such declaration is equal to or
greater than 4.00:1.00, 12.5% and (2) if the Total Leverage Ratio as at
the time of such declaration is less than 4.00:1.00 but equal to or
greater than 3.50:1.00, 25%, provided that for the Fiscal Year ending
December 31, 1998, such Excess Cash Flow shall be determined for the
period from April 13, 1998 through December 31, 1998 and (iv)
prepayments of Subordinated Debt if the Total Leverage Ratio as at the
time of such prepayment and after giving effect to such payment under
this clause (iv) and any dividends made pursuant to Section
5.02(g)(i)(E) is less than 3.50:1.00, or amend, modify or change in any
manner any term or condition of any Surviving Debt or Subordinated
Debt, or permit any of its Subsidiaries to do any of the foregoing.
(l) Amendment, Etc., of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any
Related Document or take any other action in connection with any
Related Document that would impair the value of the interest or rights
of any Loan Party thereunder in any material respect or that would
impair the rights or interests of any Agent or any Lender Party in any
material respect, or permit any of its Subsidiaries to do any of the
foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the
<PAGE> 120
114
creation or assumption of any Lien upon any of its property or assets
except for any such agreement (i) in favor of the Secured Parties or
(ii) in connection with (A) any Surviving Debt, (B) any purchase money
Debt permitted by Section 5.02(b)(iii)(B) solely to the extent that the
agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt or (C) any Capitalized
Lease permitted by Section 5.02(b)(iii)(C) solely to the extent that
such Capitalized Lease prohibits a Lien on the property subject thereto
or (D) Precious Metals Leasing.
(n) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(o) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions other than
those incurred in the ordinary course of business and consistent with
past practice.
(p) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Company and its
Subsidiaries in any period set forth below to exceed the amount set
forth below for such period.
Year Ending In Amount
======================== =============
1998 $25,000,000
------------------------ -------------
1999 $26,500,000
------------------------ -------------
2000 $28,000,000
------------------------ -------------
2001 $29,500,000
------------------------ -------------
2002 $30,000,000
------------------------ -------------
2003 $30,000,000
------------------------ -------------
2004 $30,000,000
------------------------ -------------
2005 $30,000,000
------------------------ -------------
2006 $30,000,000
------------------------ -------------
<PAGE> 121
115
plus, for each Fiscal Year set forth above, an amount equal to 25% of
the excess of the amount of Capital Expenditures permitted to be made
by the Company and its Subsidiaries in such prior year over the
aggregate amount of Capital Expenditures made by the Company and its
Subsidiaries during such prior year.
(q) Formation of Subsidiaries. Organize or invest, or permit
any Subsidiary to organize or invest, in any new Subsidiary except as
permitted under Section 5.02(f)(viii).
(r) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its capital stock
or repay or prepay any Debt owed to, make loans or advances to, or
otherwise transfer assets to or invest in, the Company or any
Subsidiary of the Company (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) any agreement or
instrument evidencing Surviving Debt and (iii) any agreement in effect
at the time such Subsidiary becomes a Subsidiary of the Company, so
long as such agreement was not entered into solely in contemplation of
such Person becoming a Subsidiary of the Company.
SECTION 5.03. Reporting Requirements. So long as any Advance
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit or Bankers' Acceptance shall be outstanding or any
Lender Party shall have any Commitment hereunder, the Company will furnish to
the Agents and (except in the case of subsection (o) below) the Lender Parties:
(a) Default Notices. As soon as possible and in any event
within two Business Days after the occurrence of each Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of
a Designated Officer of the Company setting forth details of such
Default and the action that the Company has taken and proposes to take
with respect thereto.
(b) Annual Financials. (i) As soon as available and in any
event within 90 days after the end of each Fiscal Year, a copy of the
annual audit report for such year for the Company and its Subsidiaries,
including therein Consolidated balance sheets of the Company and its
Subsidiaries as of the end of such Fiscal Year and Consolidated
statements of income and a Consolidated statement of cash flows of the
Company and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required Lenders of
independent public accountants of nationally recognized standing
<PAGE> 122
116
in the United States acceptable to the Required Lenders, together with
(A) a certificate of such accounting firm to the Lender Parties stating
that in the course of the regular audit of the business of the Company
and its Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default has occurred
and is continuing, or if, in the opinion of such accounting firm, a
Default has occurred and is continuing, a statement as to the nature
thereof, (B) a schedule in form satisfactory to the Administrative
Agent of the computations used by such accountants in determining, as
of the end of such Fiscal Year, compliance with the covenants contained
in Section 5.04, provided that in the event of any change in GAAP used
in the preparation of such financial statements, the Company shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP and (C) a certificate of a Designated Officer of the
Company stating that no Default has occurred and is continuing or, if a
default has occurred and is continuing, a statement as to the nature
thereof and the action that the Company has taken and proposes to take
with respect thereto.
.
(ii) As soon as available and in any event within 90 days
after the end of each Fiscal Year, a copy of the annual audit report
for such year for WHX Corporation and its Subsidiaries, including
therein Consolidated balance sheets of the WHX Corporation and its
Subsidiaries as of the end of such Fiscal Year and Consolidated
statements of income and a Consolidated statement of cash flows of the
WHX Corporation and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required Lenders of
PriceWaterhouseCoopers or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with a
certificate of such accounting firm to the Lender Parties stating that
such audit was conducted by such accounting firm in accordance with
generally accepted auditing standards.
(c) Quarterly Financials. (i) As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated balance sheets of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and a Consolidated statement of cash flows of the Company and
its Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated statements of income and a Consolidated statement of cash
flows of the Company and its Subsidiaries for the period commencing at
the end of the previous Fiscal Year and ending with the end of such
quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by a Designated Officer
of the Company as having been prepared in accordance with GAAP,
together with (A) a certificate of said officer stating that no Default
has occurred and is continuing or, if a
<PAGE> 123
116
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Company has taken and proposes to take
with respect thereto and (B) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Company in
determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Company shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP.
(ii) As soon as available and in any event within 45 days
after the end of each of the first three quarters of each Fiscal Year,
Consolidated balance sheets of WHX Corporation and its Subsidiaries as
of the end of such quarter and Consolidated statements of income and a
Consolidated statement of cash flows of WHX Corporation and its
Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated statements of income and a Consolidated statement of cash
flows of WHX Corporation and its Subsidiaries for the period commencing
at the end of the previous Fiscal Year and ending with the end of such
quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by a Designated Officer
of the Company as having been prepared in accordance with GAAP.
(d) Annual Forecasts. As soon as available and in any event no
later than 15 days before the end of each Fiscal Year, Consolidated
and, as to the five business segments of the Company, consolidating,
forecasted balance sheets, statements of income and statements of cash
flows of the Company and its Subsidiaries prepared by management of the
Company, in form satisfactory to the Administrative Agent, on a monthly
basis for the Fiscal Year following such Fiscal Year and on an annual
basis for each Fiscal Year thereafter until one year after the Final
Maturity Date.
(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
provincial or national securities exchange.
<PAGE> 124
118
(g) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(h) Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party
or any of its Subsidiaries under or pursuant to any Related Document or
instrument, indenture, loan or credit or similar agreement regarding or
related to any breach or default by any party thereto or any other
event that could materially impair the value of the interests or the
rights of any Loan Party or otherwise have a Material Adverse Effect
and copies of any amendment, modification or waiver of any provision of
any Related Document or instrument, indenture, loan or credit or
similar agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding the
Related Documents and such instruments, indentures and loan and credit
and similar agreements as the Administrative Agent may reasonably
request.
(i) Revenue Agent Reports. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Company is a member aggregating $1,000,000 or more.
(j) Tax Certificates. Promptly, and in any event within ten
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a
certificate (a "Tax Certificate"), signed by the President or a
Designated Officer of the Company, stating that the common parent of
the affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Company is a member has paid to the
Internal Revenue Service or other taxing authority, the full amount
that such affiliated group is required to pay in respect of Federal
income tax for such year and that the Company and its Subsidiaries have
received any amounts payable to them, and have not paid amounts in
respect of taxes (Federal, state, local or foreign) in excess of the
amount they are required to pay, under the Tax Agreement in respect of
such taxable year.
(k) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly
and in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of a Designated Officer of the Company describing
such ERISA Event and the action, if any, that such Loan Party or
<PAGE> 125
119
such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and
information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(l) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any material restrictions
on ownership, occupancy, use or transferability under any Environmental
Law.
(m) Real Property. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(w) and 4.01(x) hereto, including an
identification of all owned and leased real property disposed of by the
Company or any of its Subsidiaries during such Fiscal Year, a list and
description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and, in the case
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased during
such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete, other than owned or leased
property in each case with an aggregate fair market value not exceeding
$100,000.
(n) Insurance. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
the Company and its Subsidiaries and containing such additional
information as any Agent, or any Lender Party through the
Administrative Agent, may reasonably specify.
<PAGE> 126
120
(o) Borrowing Base Certificate. As soon as available and in
any event within 20 days after the end of each month, a Borrowing Base
Certificate, as at the end of the previous month, certified by a
Designated Officer of the Company.
(p) Year 2000 Compliance. Promptly after the Company discovers
or determines that any computer application (including those of its
suppliers, vendors and customers) that is material to its and its
Subsidiaries' business and operations will not be Year 2000 compliant,
except to the extent that such failure could not be reasonably expected
to have a Material Adverse Effect, notice of such failure.
(q) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent, or any Lender Party through the Administrative Agent, may
from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit or Bankers' Acceptance shall be outstanding or any
Lender Party shall have any Commitment hereunder, the Company will:
(a) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of the Company a Fixed Charge Coverage Ratio of not less
than the ratio set forth below for each period set forth below:
<PAGE> 127
121
Quarter Ending Ratio
====================================== =======================
September 30, 1998 1.15:1.00
December 31, 1998 1.15:1.00
- -------------------------------------- -----------------------
March 31, 1999 1.15:1.00
June 30, 1999 1.15:1.00
September 30, 1999 1.15:1.00
December 31, 1999 1.15:1.00
- -------------------------------------- -----------------------
March 31, 2000 1.25:1.00
June 30, 2000 1.25:1.00
September 30, 2000 1.25:1.00
December 31, 2000 1.25:1.00
- -------------------------------------- -----------------------
March 31, 2001 1.35:1.00
June 30, 2001 1.35:1.00
September 30, 2001 1.35:1.00
December 31, 2001 1.35:1.00
- -------------------------------------- -----------------------
March 31, 2002 1.35:1.00
June 30, 2002 1.35:1.00
September 30, 2002 1.35:1.00
December 31, 2002 1.35:1.00
- -------------------------------------- -----------------------
March 31, 2003 1.40:1.00
June 30, 2003 1.40:1.00
September 30, 2003 1.40:1.00
December 31, 2003 1.40:1.00
- -------------------------------------- -----------------------
March 31, 2004 1.40:1.00
June 30, 2004 1.40:1.00
September 30, 2004 1.40:1.00
December 31, 2004 1.40:1.00
- -------------------------------------- -----------------------
March 31, 2005 1.40:1.00
June 30, 2005 1.40:1.00
September 30, 2005 1.40:1.00
December 31, 2005 1.40:1.00
- -------------------------------------- -----------------------
March 31, 2006 1.40:1.00
June 30, 2006 1.40:1.00
September 30, 2006 1.40:1.00
December 31, 2006 1.40:1.00
- -------------------------------------- -----------------------
<PAGE> 128
122
(b) Senior Leverage Ratio. Maintain at the end of each fiscal
quarter of the Company a Senior Leverage Ratio of not more than the
ratio set forth below for each period set forth below:
Quarter Ending Ratio
===================================== =======================
September 30, 1998 4.70:1.00
December 31, 1998 4.70:1.00
- ------------------------------------- -----------------------
March 31, 1999 4.55:1.00
June 30, 1999 4.55:1.00
September 30, 1999 4.55:1.00
December 31, 1999 4.55:1.00
- ------------------------------------- -----------------------
March 31, 2000 4.25:1.00
June 30, 2000 4.25:1.00
September 30, 2000 4.25:1.00
December 31, 2000 4.25:1.00
- ------------------------------------- -----------------------
March 31, 2001 3.95:1.00
June 30, 2001 3.95:1.00
September 30, 2001 3.95:1.00
December 31, 2001 3.95:1.00
- ------------------------------------- -----------------------
March 31, 2002 3.75:1.00
June 30, 2002 3.75:1.00
September 30, 2002 3.75:1.00
December 31, 2002 3.75:1.00
- ------------------------------------- -----------------------
March 31, 2003 3.50:1.00
June 30, 2003 3.50:1.00
September 30, 2003 3.50:1.00
December 31, 2003 3.50:1.00
- ------------------------------------- -----------------------
March 31, 2004 3.25:1.00
June 30, 2004 3.25:1.00
September 30, 2004 3.25:1.00
December 31, 2004 3.25:1.00
- ------------------------------------- -----------------------
March 31, 2005 3.25:1.00
June 30, 2005 3.25:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.25:1.00
- ------------------------------------- -----------------------
March 31, 2006 3.25:1.00
June 30, 2006 3.25:1.00
September 30, 2006 3.25:1.00
December 31, 2006 3.25:1.00
- ------------------------------------- -----------------------
<PAGE> 129
123
(c) Total Leverage Ratio. Maintain at the end of each fiscal
quarter of the Company a Total Leverage Ratio of not more than the
ratio set forth below for each period set forth below:
Quarter Ending Ratio
===================================== =======================
September 30, 1998 5.00:1.00
December 31, 1998 5.00:1.00
- ------------------------------------- -----------------------
March 31, 1999 5.00:1.00
June 30, 1999 5.00:1.00
September 30, 1999 5.00:1.00
December 31, 1999 5.00:1.00
- ------------------------------------- -----------------------
March 31, 2000 5.00:1.00
June 30, 2000 5.00:1.00
September 30, 2000 5.00:1.00
December 31, 2000 5.00:1.00
- ------------------------------------- -----------------------
March 31, 2001 5.00:1.00
June 30, 2001 5.00:1.00
September 30, 2001 5.00:1.00
December 31, 2001 5.00:1.00
- ------------------------------------- -----------------------
March 31, 2002 4.75:1.00
June 30, 2002 4.75:1.00
September 30, 2002 4.75:1.00
December 31, 2002 4.75:1.00
- ------------------------------------- -----------------------
March 31, 2003 4.75:1.00
June 30, 2003 4.75:1.00
September 30, 2003 4.75:1.00
December 31, 2003 4.75:1.00
- ------------------------------------- -----------------------
March 31, 2004 4.50:1.00
June 30, 2004 4.50:1.00
September 30, 2004 4.50:1.00
December 31, 2004 4.50:1.00
- ------------------------------------- -----------------------
March 31, 2005 4.00:1.00
June 30, 2005 4.00:1.00
September 30, 2005 4.00:1.00
December 31, 2005 4.00:1.00
- ------------------------------------- -----------------------
March 31, 2006 4.00:1.00
June 30, 2006 4.00:1.00
September 30, 2006 4.00:1.00
December 31, 2006 4.00:1.00
===================================== =======================
<PAGE> 130
124
(d) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Company an Interest Coverage Ratio of not less
than the ratio set forth below for each period set forth below:
Quarter Ending Ratio
September 30, 1998 2.25:1.00
December 31, 1998 2.25:1.00
- ---------------------------------- -------------------------
March 31, 1999 2.30:1.00
June 30, 1999 2.30:1.00
September 30, 1999 2.30:1.00
December 31, 1999 2.30:1.00
- ---------------------------------- -------------------------
March 31, 2000 2.55:1.00
June 30, 2000 2.55:1.00
September 30, 2000 2.55:1.00
December 31, 2000 2.55:1.00
- ---------------------------------- -------------------------
March 31, 2001 2.85:1.00
June 30, 2001 2.85:1.00
September 30, 2001 2.85:1.00
December 31, 2001 2.85:1.00
- ---------------------------------- -------------------------
March 31, 2002 3.15:1.00
June 30, 2002 3.15:1.00
September 30, 2002 3.15:1.00
December 31, 2002 3.15:1.00
- ---------------------------------- -------------------------
March 31, 2003 3.35:1.00
June 30, 2003 3.35:1.00
September 30, 2003 3.35:1.00
December 31, 2003 3.35:1.00
- ---------------------------------- -------------------------
March 31, 2004 3.50:1.00
June 30, 2004 3.50:1.00
September 30, 2004 3.50:1.00
December 31, 2004 3.50:1.00
- ---------------------------------- -------------------------
March 31, 2005 3.50:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.50:1.00
December 31, 2005 3.50:1.00
- ---------------------------------- -------------------------
March 31, 2006 3.50:1.00
June 30, 2006 3.50:1.00
September 30, 2006 3.50:1.00
December 31, 2006 3.50:1.00
- ---------------------------------- -------------------------
<PAGE> 131
125
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any
Advance or any portion of any Bankers' Acceptance when the same shall
become due and payable or (ii) any Borrower shall fail to pay any
interest on any Advance, or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii)
within five days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.16, 5.01(e), (f), (i),
(j), (m) or (p), 5.02, 5.03 or 5.04; provided, however, that no Default
shall be deemed to have occurred with respect to Section 5.04(b) or (c)
as at the end of any fiscal quarter if, prior to the delivery of the
financial statements required by Section 5.03(b)(i) or 5.03(c)(i) in
respect of such fiscal quarter, the Company shall have received
additional equity and shall have made the prepayment required by
Section 2.07(b)(iii)(y) and, as a result thereof, assuming such
additional equity contribution had been made on the last day of such
fiscal quarter, the Company shall have complied with such Section
5.04(b) or (c) on a pro forma basis; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
15 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Company by any Agent or any Lender Party;
or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal
amount (or, in the case of any Hedge Agreement, an Agreement Value) of
at least $1,000,000 either individually or in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise); or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt, if
the effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Debt or
<PAGE> 132
126
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 30 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) one or more judgments or orders for the payment of money
in excess of $1,500,000 in the aggregate shall be rendered against any
Loan Party or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgments or orders or (ii) there shall be any period of 15 consecutive
days during which a stay of enforcement of such judgments or orders, by
reason of a pending appeal or otherwise, shall not be in effect unless
such judgments or orders are covered by a valid and binding policy of
insurance covering payment thereof and the insurer, which shall be
rated at least "A" by A. M. Best Company has acknowledged in writing
responsibility for the full payment of such judgments or orders; or
(h) one or more non-monetary judgments or orders shall be
rendered against any Loan Party or any of its Subsidiaries that are, in
the aggregate, reasonably likely to have a Material Adverse Effect, and
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgments or orders, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable
<PAGE> 133
127
in any material respect against any Loan Party party to it, or any such
Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01 or 5.01(j) shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first priority
lien on and security interest in the Collateral purported to be covered
thereby in any material respect; or
(k) a Change of Control shall occur; or
(l) (i) Immediately after Wheeling-Pittsburgh Steel
Corporation ceases to be an ERISA Affiliate (the "WP Spinoff"), as to
any Plan as to which immediately after the WP Spinoff any Loan Party or
any ERISA Affiliate is deemed to be an "employer" under ERISA, the
funded current liability percentage (as defined in ERISA) of such Plan
is less than 90% or the unfunded current liability (as defined in
ERISA) exceeds $20,000,000 or (ii) any Loan Party shall incur liability
in excess of $20,000,000 with respect to any pension plan as a result
of the WP Spinoff; or
(m) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $4,000,000 and
any Loan Party or any ERISA Affiliate could reasonably be expected to
incur liability in such amount; provided, however, that a WP Spinoff or
any transaction occurring in connection therewith shall not be an ERISA
Event under clause (a), (d) or (e) of the definition of ERISA Event for
purposes of this subsection (m); or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$4,000,000 or requires payments exceeding $1,000,000 per annum; or
(o) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such
<PAGE> 134
128
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $4,000,000; or
(p) an "Event of Default" (as defined in any Mortgage) shall
have occurred and be continuing;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.03(c) and Swing Line Advances
by a Revolving Credit Lender pursuant to Section 2.02(b)), of each Multicurrency
Lender to accept or purchase Bankers' Acceptances and of each Issuing Bank to
issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrowers, declare the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Borrower, (B) by notice to each
party required under the terms of any agreement in support of which a Letter of
Credit is issued, request that all Obligations under such agreement be declared
to be due and payable and (C) by notice to each Issuing Bank, direct such
Issuing Bank to deliver a Default Termination Notice to the beneficiary of each
Letter of Credit issued by it, and each Issuing Bank shall deliver such Default
Termination Notices; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to any Borrower under the Federal
Bankruptcy Code, (x) the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and Swing
Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b)), of each
Multicurrency Lender to accept or purchase Bankers' Acceptances and of each
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(y) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit and
Bankers' Acceptances upon Default. If any Event of Default shall have occurred
and be continuing, the Administrative Agent may, or shall at the request of the
Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, (a) make demand upon the Company to, and
forthwith upon such demand the Company will, pay to the Collateral Agent on
behalf of the Lender Parties in same day funds at the Collateral Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate
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Available Amount of all Letters of Credit then outstanding and (b) make demand
upon the Canadian Borrower to, and forthwith upon such demand, such Borrower
will, pay to the Administrative Agent on behalf of the Multicurrency Lenders in
same day funds at the Administrative Agent's office designated in such demand,
for deposit in the Canadian Cash Collateral Account, an amount equal to the
aggregate Face Amount of all Bankers' Acceptances then outstanding. If at any
time the Administrative Agent or the Collateral Agent determines that any funds
held in the L/C Cash Collateral Account or the Canadian Cash Collateral Account,
as the case may be, are subject to any right or claim of any Person other than
the Agents and the Lender Parties or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit or the aggregate
Face Amount of all outstanding Bankers' Acceptances, as the case may be, the
Company will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, (x) pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent or the Collateral Agent, as the case may be, determines to
be free and clear of any such right and claim and (y) pay to the Administrative
Agent, as additional funds to be deposited and held in the Canadian Cash
Collateral Account, an amount equal to the excess of (i) such aggregate Face
Amount of all outstanding Bankers' Acceptances over (ii) the total amount of
funds, if any, then held in the Canadian Cash Collateral Account that the
Administrative Agent or the Collateral Agent determines to be free and clear of
any such right and claim. Upon the drawing of any Letter of Credit or the
maturity of any Banker's Acceptance for which funds are on deposit in the L/C
Cash Collateral Account or the Canadian Cash Collateral Account, such funds
shall be applied to reimburse the relevant Issuing Bank, Revolving Credit
Lenders or Multicurrency Lenders, as applicable, to the extent permitted by
applicable law.
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. Guaranty. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each Foreign
Borrower now or hereafter existing under this Agreement or any other Loan
Document, whether for principal, interest, fees, expenses or otherwise (such
obligations, to the extent not paid by such Foreign Borrower or specifically
waived in accordance with Section 9.01, being the "Guaranteed Obligations"), and
agrees to pay any and all expenses (including reasonable counsel fees and
expenses) incurred by the Administrative Agent or the Lenders in enforcing any
rights under this Article VII ("this Guaranty"). Without limiting the generality
of the foregoing, the Company's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any Foreign
Borrower to the Administrative Agent or any Lender under this Agreement or any
other
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Loan Agreement but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
any Foreign Borrower.
SECTION 7.02. Guaranty Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the other Loan Documents, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent or the Lenders with respect
thereto. The obligations of the Company under this Guaranty are independent of
the Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Guaranty, irrespective of whether
any action is brought against any Foreign Borrower or whether any Foreign
Borrower is joined in any such action or actions. The liability of the Company
under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this
Agreement, any other Loan Document or any agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Agreement or any other Loan Document, including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension
of additional credit to any Foreign Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the
corporate structure or existence of any Foreign Borrower; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, the
Company, any Foreign Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Foreign Borrower or otherwise,
all as though such payment had not been made.
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SECTION 7.03. Waiver. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender exhaust any right or take any action against
any Foreign Borrower or any other Person or any collateral. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set forth in this
Section 7.03 is knowingly made in contemplation of such benefits. The Company
hereby waives any right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 7.04. Continuing Guaranty; Assignments. This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, (b) be binding
upon the Company, its successors and assigns and (c) inure to the benefit of and
be enforceable by the Lenders, the Administrative Agent and their successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(c), any Lender may assign or otherwise transfer all or any portion of its
rights and obligations hereunder (including, without limitation, all or any
portion of its Commitments, the Advances owing to it and the Note or Notes held
by it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Lender herein or
otherwise, in each case as provided in Section 9.07.
SECTION 7.05. Subrogation. The Company will not exercise any
rights that it may now or hereafter acquire against any Foreign Borrower or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of the Company's obligations under this Agreement, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against a Foreign Borrower or
any other insider guarantor or any collateral, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from a Foreign Borrower or any
other insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on account of such
claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash and the Termination Date shall have occurred. If any amount shall be paid
to the Company in violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, such amount shall
be held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of this Agreement, or
to be held as collateral for any Guaranteed Obligations or other
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amounts payable under this Guaranty thereafter arising. If (i) the Company shall
make payment to the Administrative Agent or any Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Administrative Agent and the Lenders
will, at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment by the Company.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, the Swing Line Bank (if applicable), an Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lender Parties and all holders
of Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by any Borrower pursuant to the terms
of this Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any
of their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be
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liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions (other than, in the case of the
Administrative Agent, reasonable care in respect of the delivery of items
required by Section 3.01 or 3.02) of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) reasonably believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.03. Citicorp and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citicorp shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not an Agent; and the term
"Lender Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include Citicorp in its individual capacity. Citicorp and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person that may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if Citicorp were not an Agent and without any duty to account therefor to the
Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrowers) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such
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Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, reasonable fees and expenses
of counsel) payable by the Borrowers under Section 9.04(a), to the extent that
such Agent is not promptly reimbursed for such costs and expenses by the
Borrowers.
(b) Each Lender Party severally agrees to indemnify each
Issuing Bank (to the extent not promptly reimbursed by the Borrowers) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrowers under Section 9.04(b), to the
extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrowers.
(c) For purposes of this Section 8.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (iii) the aggregate unused portions of their
respective Term A Commitments, Term B Commitments, Delayed Draw Commitments and
Multicurrency Commitments at such time and (iv) their respective Unused
Revolving Credit Commitments at such time; provided that the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to any Issuing Bank shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments. The failure of any Lender Party to reimburse any Agent or
any Issuing Bank, as the case may be, promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent or such Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
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Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent or such Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign as to any
or all of the Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrowers and may be removed as to all of the Facilities
at any time with or without cause by the Required Lenders; provided that each of
the Required Lenders so acting to remove such Agent shall offer to assume such
Lender's Pro Rata Share of the Revolving Credit Commitments of such Agent. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent as to such of the Facilities as to which such Agent
has resigned or been removed. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lender Parties, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent as to all
of the Facilities and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to less than all of
the Facilities and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Agent with respect to the Letter of Credit Facility) and payments
by the Borrowers in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. If within 45 days after written
notice is given of the retiring Agent's
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resignation or removal under this Section 8.06 no successor Agent shall have
been appointed and shall have accepted such appointment, then on such 45th day
(i) the retiring Agent's resignation or removal shall become effective, (ii) the
retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (iii) the Required Lenders shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent as to any of the
Facilities shall have become effective, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent as to such Facilities under this Agreement.
SECTION 8.07. Sub-Agents. Each Sub-Agent has been designated
under this Agreement to carry out duties of the Administrative Agent. Each
Sub-Agent shall be subject to each of the obligations in this Agreement to be
performed by the applicable Sub-Agent, and each of the Borrowers and the Lender
Parties agrees that each Sub-Agent shall be entitled to exercise each of the
rights and shall be entitled to each of the benefits of the Administrative Agent
under this Agreement as relate to the performance of its obligations hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. (a) No amendment or waiver of
any provision of this Agreement or the Notes or any other Loan Document, nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (i) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (A) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.03,
(B) change the number of Lenders or the percentage of (1) the Commitments, (2)
the aggregate unpaid principal amount of the Advances or (3) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (C)
release all or substantially all of the Guarantors or otherwise limit liability
of all or substantially all of the Guarantors with respect to the Obligations
owing to the Agents and the Lender Parties, (D) release all or substantially all
of the Collateral in any transaction or series of related transactions or permit
the creation, incurrence, assumption or existence of any Lien on all or
substantially all of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the
Secured Parties under the Loan Documents or (E) amend this Section 9.01 and (ii)
no amendment, waiver or consent shall, unless
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in writing and signed by the Required Lenders and each Lender (other than any
Lender that is, at such time, a Defaulting Lender) that has a Commitment under
the Term A Facility, Term B Facility, Delayed Draw Facility, Multicurrency
Facility or Revolving Credit Facility if such Lender is directly affected by
such amendment, waiver or consent, (A) increase the Commitments of such Lender
or subject such Lender to any additional obligations, (B) reduce the principal
of, or interest on, the Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender, (C) postpone any date fixed for any payment of
principal of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender or (D) change the order of application
of any prepayment set forth in Section 2.07 in any manner that materially
affects such Lender; provided further that the Collateral Agent and the
Administrative Agent may, without the consent of the Required Lenders, release
up to 10% of the book value of the Collateral or consent to the creation,
incurrence, assumption or existence of any Lien on up to 10% of the book value
of the Collateral; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Bank or each Issuing Bank, as the
case may be, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Swing Line Bank or of the Issuing Banks,
as the case may be, under this Agreement; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by an Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of such Agent under this Agreement or the other Loan Documents.
(b) Each Lender grants (x) to the Administrative Agent the
right to purchase all (but not less than all) of such Lender's Commitments and
Advances owing to it and the Notes held by it and all of its rights and
obligations hereunder and under the other Loan Documents at a price equal to the
aggregate amount of outstanding Advances owed to such Lender (together with all
accrued and unpaid interest and fees owed to such Lender), and (y) to the
Company the right to cause an assignment of all (but not less than all) of such
Lender's Commitments and Advances owing to it and the Notes held by it and all
of its rights and obligations hereunder and under the other Loan Documents to
Eligible Assignees, which right may be exercised by the Administrative Agent or
the Company, as the case may be, if such Lender refuses to execute any
amendment, waiver or consent which requires the written consent of all the
Lenders and to which Lenders owed at least 80% of the aggregate unpaid principal
amount of Advances or, if no such principal amount is then outstanding, Lenders
having at least 80% of the Commitments, the Administrative Agent and the Company
have agreed. Each Lender agrees that if the Administrative Agent or the Company,
as the case may be, exercises its option hereunder, it shall promptly execute
and deliver all agreements and documentation necessary to effectuate such
assignment as set forth in Section 9.07.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to any Borrower, at 555 Theodore Fremd
Avenue,
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Rye, New York 10580, Attention: Paul Dixon, with a copy to WHX Corporation at
its address at 110 East 59th Street, New York, New York 10022, Attention:
Stewart E. Tabin; if to any Initial Lender or any Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Collateral Agent, at its address at 399 Park Avenue, New York, New York 10043,
Attention: Keith Karako; and if to the Administrative Agent, at its address at
399 Park Avenue, New York, New York 10043, Attention: Keith Karako; or, as to
any Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Company and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to any Agent pursuant to Article II, III or VII
shall not be effective until received by such Agent. Manual delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers (other
than the Canadian Borrower) agree jointly and severally, and the Canadian
Borrower agrees, as to the portion thereof attributable to it, its property and
to its Borrowing hereunder, to pay on demand (i) all costs and expenses of each
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without limitation,
(A) all due diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto, with respect to advising such
Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation,
<PAGE> 145
139
or any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent and each Lender Party with
respect thereto).
(b) The Borrowers (other than the Canadian Borrower) agree
jointly and severally and the Canadian Borrower agrees, as to the portion
thereof attributable to it, its property or its Borrowings hereunder, to
indemnify and hold harmless each Agent, each Lender Party and each of their
Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated thereby or (ii) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way to any Loan Party
or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated by the Transaction
Documents are consummated. Each Borrower also agrees not to assert any claim
against any Agent, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Facilities, the actual or proposed use of
the proceeds of the Advances or the Letters of Credit, the Transaction Documents
or any of the transactions contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by any Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.07, 2.10(b)(i) or
2.12(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or if such Borrower fails to make any payment or
prepayment or Conversion of an Advance for which a notice of prepayment or
Conversion has been given or that is otherwise required to be made, whether
pursuant to Section 2.05, 2.07 or 6.01 or otherwise, such Borrower shall, upon
demand by such Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any additional losses,
<PAGE> 146
140
costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay or Convert, as the case may be,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.12 and 2.14 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of any Borrower against
any and all of the Obligations of such Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify such Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by each Borrower and each Agent and
the Administrative Agent shall have been notified by each Initial Lender and
each Initial Issuing Bank that such Initial Lender and such Initial Issuing Bank
has executed it and thereafter shall be binding upon and inure to the benefit of
each Borrower, each Agent and each Lender Party and their respective successors
and
<PAGE> 147
141
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lender
Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may, and, if demanded by the Company and the Administrative Agent pursuant to
Section 9.01(b) with respect to any amendment requiring consent of all of the
Lenders as to which such Lender shall not have consented, will, assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all rights and obligations under and in respect
of one or more Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or in the case of any
Multicurrency Lender, an Affiliate of such Multicurrency Lender or an assignment
of all of a Lender's rights and obligations under this Agreement or in the case
of an assignment of Term Loan B, all of a Lender's rights and obligations under
the Term Loan B Facility, the aggregate amount of the Commitments being assigned
to such Eligible Assignee pursuant to such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) no
such assignment shall be permitted without the consent of the Administrative
Agent until the Administrative Agent shall have notified the Lender Parties that
syndication of the Commitments hereunder has been completed, (v) no such
assignments shall be permitted without the consent of the Company and the
Administrative Agent to any Lender that would be entitled to demand additional
payments pursuant to Section 2.12 or 2.14 if such payments were not required to
be made to the assigning Lender immediately prior to such assignment, (vi) each
such assignment made as a result of a demand by the Company shall be arranged by
the Company after consultation with the Administrative Agent and shall be either
an assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (vii) no Lender shall be obligated to make any such assignment
as a result of a demand by the Company unless and until such Lender shall have
received one or more payments from either the Company or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal and all other amounts
payable to such Lender under this Agreement and (viii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500.
<PAGE> 148
142
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than its rights under Sections 2.12, 2.14 and 9.04 to the
extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder confirm to
and agree with each other and the other parties thereto and hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Company shall maintain at its address
referred to in Section 9.02 a
<PAGE> 149
143
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lender Parties
and the Commitment under each Facility of, and principal amount of the Advances
owing under each Facility to, each Lender Party from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrowers, the Agents and the Lender
Parties shall treat each Person whose name is recorded in the Register as a
Lender Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender Party at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
applicable Borrowers and each other Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
applicable Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under each Facility pursuant to such Assignment and Acceptance and, if any
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of such assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1, A-2,
A-3, A-4 or A-5 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii) each such
assignment shall be to an Eligible Assignee and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations
<PAGE> 150
144
under this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it and the Note or Notes (if any) held by
it); provided, however, that (i) such Lender Party's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender Party
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrowers, the Agents and the other Lender Parties shall continue to
deal solely and directly with such Lender Party in connection with such Lender
Party's rights and obligations under this Agreement, (v) no participant under
any such participation shall have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Collateral and (vi) such Lender Party shall give prompt
notice to the Administrative Agent of the amount and Persons party to each such
participation.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Manual delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Banks. The Company
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment
<PAGE> 151
145
under any Letter of Credit, except that the Company shall have a claim against
such Issuing Bank, and such Issuing Bank shall be liable to the Company, to the
extent of any direct, but not consequential, damages suffered by the Company
that the Company proves were caused by (i) such Issuing Bank's willful
misconduct or gross negligence as determined in a final, non-appealable judgment
by a court of competent jurisdiction in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of Credit or (ii)
such Issuing Bank's willful failure to make lawful payment under a Letter of
Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Letter of Credit. In furtherance
and not in limitation of the foregoing, such Issuing Bank may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Company's expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment in respect thereof, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such Federal court. Each Foreign Borrower hereby agrees that service of
process in any such action or proceeding brought in any such New York State
court or in such Federal court may be made upon the Company, and each Foreign
Subsidiary hereby irrevocably appoints the Company its authorized agent to
accept such service of process, and agrees that the failure of the Company to
give any notice of any such service shall not impair or affect the validity of
such service or any judgment rendered in any action or proceeding based thereon.
Each Borrower hereby further irrevocably consents to the service of process in
any action or proceeding in such courts by the mailing thereof by any party
hereto by registered or certified mail, postage prepaid, to such Borrower at its
address specified in Section 9.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any of the other Loan Documents in the courts of any jurisdiction.
<PAGE> 152
146
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.13. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at Citibank's principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on which
final judgment is given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a Foreign Currency into Dollars,
the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase such Foreign Currency
with Dollars at Citibank's principal office in London at 11:00 A.M. (London
time) on the Business Day preceding that on which final judgment is given.
(c) The obligation of each Borrower in respect of any sum due
from it in any currency (the "Primary Currency") to any Lender Party or the
Administrative Agent hereunder shall, notwithstanding any judgment in any other
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender Party or the Administrative Agent (as the case may be),
of any sum adjudged to be so due in such other currency, such Lender Party or
the Administrative Agent (as the case may be) may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to such Lender Party or the Administrative Agent (as the case
may be) in the applicable Primary Currency, each Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender Party
or the Administrative Agent (as the case may be) against such loss, and if the
amount of the applicable Primary Currency so purchased exceeds such sum due to
any Lender Party or the Administrative Agent (as the case may be) in the
applicable Primary Currency, such Lender Party or the Administrative Agent (as
the case may be) agrees to remit to such Borrower such excess.
SECTION 9.14. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
<PAGE> 153
147
SECTION 9.15. Substitution of Currency. If a change in any
Foreign Currency occurs pursuant to any applicable law, rule or regulation of
any governmental, monetary or multi-national authority, this Agreement
(including, without limitation, the definition of Eurocurrency Rate) will be
amended to the extent determined by the Administrative Agent (acting reasonably
and in consultation with the Borrowers and the Multicurrency Lenders) to be
necessary to reflect the change in currency and to put the Lenders and the
Borrowers in the same position, so far as possible, that they would have been in
if no change in such Foreign Currency had occurred.
SECTION 9.16. Waiver of Jury Trial. Each of the Borrowers, the
Agents and the Lender Parties irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Advances
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
SECTION 9.17. Power of Attorney. Each Subsidiary of the
Company may from time to time authorize and appoint the Company as its
attorney-in-fact to execute and deliver (a) any amendment, waiver or consent in
accordance with Section 9.01 on behalf of and in the name of such Subsidiary and
(b) any notice or other communication hereunder, on behalf of and in the name of
such Subsidiary. Such authorization shall become effective as of the date on
which such Subsidiary delivers to the Administrative Agent a power of attorney
enforceable under applicable law and any additional information to the
Administrative Agent as necessary to make such power of attorney the legal,
valid and binding obligation of such Subsidiary.
<PAGE> 154
148
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
HANDY & HARMAN
By
-------------------------------------
Title:
HANDY & HARMAN OF CANADA, LIMITED
By
-------------------------------------
Title:
HANDY & HARMAN EUROPE LIMITED
By
-------------------------------------
Title:
RIGBY-MARYLAND (STAINLESS) LIMITED
By
-------------------------------------
Title:
INDIANA TUBE DANMARK A/S
By
-------------------------------------
Title:
<PAGE> 155
149
Agents
CITICORP USA, INC.,
as Administrative Agent and as Collateral
Agent
By
------------------------------------------
Title:
Initial Lenders
CITIBANK, N.A., as the Initial Issuing Bank and
as Initial Lender
By
------------------------------------------
Title:
NATIONSBANK, N.A.
By
------------------------------------------
Title:
<PAGE> 156
150
PNC BANK, N.A.
By
------------------------------------------
Title:
THE ROYAL BANK OF SCOTLAND PLC.
By
------------------------------------------
Title:
BHF-BANK AKTIENGESELLSCHAFT
By
------------------------------------------
Title:
By
------------------------------------------
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
------------------------------------------
Title:
By
------------------------------------------
Title:
<PAGE> 157
151
COMERICA BANK
By
------------------------------------------
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By
------------------------------------------
Title:
By
------------------------------------------
Title:
FLEET PRECIOUS METALS INC.
By
------------------------------------------
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By
------------------------------------------
Title:
KZH-ING-3 CORPORATION
By
------------------------------------------
Title:
<PAGE> 158
152
KEYBANK, N.A.
By
------------------------------------------
Title:
KZH-SOLEIL-2 CORPORATION
By
------------------------------------------
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By
------------------------------------------
Title:
MASSMUTUAL HIGH YIELD PARTNERS II,
LLC
By: HYP MANAGEMENT, INC.,
as managing member
By
------------------------------------------
Title:
ROYAL BANK OF CANADA
By
------------------------------------------
Title:
<PAGE> 159
1
EXHIBIT A-1
FORM OF
TERM A NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, Handy & Harman, a New
York corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________ _______________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Term A Advance (as defined below) owing to the Lender by
the Borrower pursuant to the Credit Agreement dated as of July 30, 1998 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among the Borrower, certain other
borrowers parties thereto, the Lender and certain other lender parties party
thereto, Citicorp USA, Inc. ("Citicorp"), as Collateral Agent, and Citicorp, as
Administrative Agent for the Lender and such other lender parties, on the dates
and in the amounts specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of the Term A Advance from the date of such Term A Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp, as Administrative Agent, at its account
with Citibank at its office at Two Penn's Way, Suite 200, New Castle, Delaware
19720, in same day funds. The Term A Advance owing to the Lender by the Borrower
and the maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto, which is part of this Promissory Note; provided,
however, that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
<PAGE> 160
2
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (the "Term A
Advance") by the Lender to the Borrower in an amount not to exceed the Dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
such Term A Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note and the other Loan
Documents, and the obligations of the other Loan Parties under the Loan
Documents, are guaranteed and are secured by the Collateral, in each case as
provided in the Loan Documents.
HANDY & HARMAN
By
------------------------------------------
Title:
<PAGE> 161
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
================== ======================== ======================== ========================= ========================
</TABLE>
<PAGE> 162
EXHIBIT A-2
FORM OF
TERM B NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, Handy & Harman, a New
York corporation (the "Borrower"), HEREBY PROMISES TO PAY
_________________________ or its registered assigns (the "Lender") for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of the Term B Advance (as defined below)
owing to the Lender by the Borrower pursuant to the Credit Agreement dated as of
July 30, 1998 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among the
Borrower, certain other borrowers parties thereto, the Lender and certain other
lender parties party thereto, Citicorp USA, Inc. ("Citicorp"), as Collateral
Agent, and Citicorp, as Administrative Agent for the Lender and such other
lender parties, on the dates and in the amounts specified in the Credit
Agreement.
The Borrower promises to pay to ______ or its registered
assigns interest on the unpaid principal amount of the Term B Advance from the
date of such Term B Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp, as Administrative Agent, at its account
with Citibank at its office at Two Penn's Way, Suite 200, New Castle, Delaware
19720, in same day funds. The Term B Advance owing to the Lender by the Borrower
and the maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto, which is part of this Promissory Note; provided,
however, that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (the "Term B
Advance") by the Lender to the Borrower in an amount not to exceed the Dollar
amount first above mentioned, the indebtedness of the Borrower
<PAGE> 163
2
resulting from such Term B Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. The obligations of the Borrower under this Promissory Note
and the other Loan Documents, and the obligations of the other Loan Parties
under the Loan Documents, are guaranteed and are secured by the Collateral, in
each case as provided in the Loan Documents.
HANDY & HARMAN
By
----------------------------------------
Title:
<PAGE> 164
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
================== ======================== ======================== ========================= ========================
</TABLE>
<PAGE> 165
EXHIBIT A-3
FORM OF
DELAYED DRAW NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, Handy & Harman, a New
York corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
aggregate principal amount of the Delayed Draw Advances (as defined below) owing
to the Lender by the Borrower pursuant to the Credit Agreement dated as of July
30, 1998 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; terms defined therein, unless
otherwise defined herein, being used herein as therein defined) among the
Borrower, certain other borrowers parties thereto, the Lender and certain other
lender parties party thereto, Citicorp USA, Inc. ("Citicorp"), as Collateral
Agent, and Citicorp, as Administrative Agent for the Lender and such other
lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Delayed Draw Advance from the date of such Delayed Draw Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp, as Administrative Agent, at its account
with Citibank at its office at Two Penn's Way, Suite 200, New Castle, Delaware
19720 in same day funds. Each Delayed Draw Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto, which is part of this Promissory Note;
provided, however, that the failure of the Lender to make any such recordation
or endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Delayed Draw
Advances") by the Lender to the Borrower from time to time in an aggregate
amount not to exceed the Dollar amount first above mentioned, the indebtedness
of the Borrower resulting from each such Delayed Draw Advance being evidenced by
this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified. The obligations of
<PAGE> 166
2
the Borrower under this Promissory Note and the other Loan Documents, and the
obligations of the other Loan Parties under the Loan Documents, are guaranteed
and are secured by the Collateral, in each case as provided in the Loan
Documents.
HANDY & HARMAN
By
----------------------------------------
Title:
<PAGE> 167
3
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
================== ======================== ======================== ========================= ========================
</TABLE>
<PAGE> 168
EXHIBIT A-4
FORM OF
MULTICURRENCY NOTE
Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned,
_________________________, a __________ corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of _________________________ (the "Lender") for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below) the aggregate principal amount of the Multicurrency Advances
(as defined below) owing to the Lender by the Borrower pursuant to the Credit
Agreement dated as of July 30, 1998 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms defined therein, unless otherwise defined herein, being used herein as
therein defined) among the Borrower, certain other borrowers parties thereto,
the Lender and certain other lender parties party thereto, Citicorp USA, Inc.
("Citicorp"), as Collateral Agent, and Citicorp, as Administrative Agent for the
Lender and such other lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Multicurrency Advance from the date of such Multicurrency Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in the currency of the
applicable Multicurrency Advance at the applicable Payment Office in same day
funds. Each Multicurrency Advance owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof, shall
be recorded by the Lender and, prior to any transfer hereof, endorsed on the
grid attached hereto, which is part of this Promissory Note; provided, however,
that the failure of the Lender to make any such recordation or endorsement shall
not affect the Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Multicurrency
Advances") by the Lender to the Borrower from time to time, the indebtedness of
the Borrower resulting from each such Multicurrency Advance being evidenced by
this Promissory Note, (ii) contains provisions for determining the Dollar
Equivalent of Multicurrency Advances denominated in Foreign Currencies, and
(iii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. The obligations of the Borrower under this Promissory Note
and
<PAGE> 169
2
the other Loan Documents, and the obligations of the other Loan Parties under
the Loan Documents, are guaranteed and are secured by the Collateral, in each
case as provided in the Loan Documents.
[NAME OF BORROWER]
By
-------------------------------------
Title:
<PAGE> 170
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
================== ======================== ======================== ========================= ========================
</TABLE>
<PAGE> 171
EXHIBIT A-5
FORM OF
REVOLVING CREDIT NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, Handy & Harman, a New
York corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
aggregate principal amount of the Revolving Credit Advances (as defined below)
owing to the Lender by the Borrower pursuant to the Credit Agreement dated as of
July 30, 1998 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among the
Borrower, certain other borrowers parties thereto, the Lender and certain other
lender parties party thereto, Citicorp USA, Inc. ("Citicorp"), as Collateral
Agent, and Citicorp, as Administrative Agent for the Lender and such other
lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp, as Administrative Agent, at its office at
Citibank at its office at Two Penn's Way, Suite 200, New Castle, Delaware 19720
in same day funds. Each Revolving Credit Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto, which is part of this Promissory Note;
provided, however, that the failure of the Lender to make any such recordation
or endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Revolving
Credit Advances") by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the Dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein
<PAGE> 172
2
specified. The obligations of the Borrower under this Promissory Note and the
other Loan Documents, and the obligations of the other Loan Parties under the
Loan Documents, are guaranteed and are secured by the Collateral, in each case
as provided in the Loan Documents.
HANDY & HARMAN
By
----------------------------------------
Title:
<PAGE> 173
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
- ------------------ ------------------------ ------------------------ ------------------------- ------------------------
================== ======================== ======================== ========================= ========================
</TABLE>
<PAGE> 174
EXHIBIT A-6
FORM OF DRAFT
DUE___________________ No. BA___
Toronto, Canada
------------, ----
ON ______________________________, (WITHOUT GRACE), FOR VALUE RECEIVED
PAY TO THE ORDER OF THE UNDERSIGNED DRAWER THE SUM OF
$_______________________________________________________ CANADIAN DOLLARS
TO: [NAME OF BANK]
[NAME OF CANADIAN BORROWER]
PER:_____________________________
Authorized Signatory
<PAGE> 175
EXHIBIT B-1
FORM OF
NOTICE OF BORROWING
Citicorp USA, Inc.,
as Administrative Agent
under the Credit Agreement
referred to below
Two Penn's Way
New Castle, Delaware 19720 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Credit
Agreement dated as of July 30, 1998 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined), among the
undersigned, certain other borrowers parties thereto, the Lender Parties party
thereto, Citicorp USA, Inc. ("Citicorp"), as Collateral Agent, and Citicorp, as
Administrative Agent for the Lender Parties, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_________ __, ____.
(ii) The Facility under which the Proposed Borrowing is
requested is the _______________ Facility.
(iii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurocurrency Rate Advances][Local Rate
Advances].
(iv) The aggregate amount of the Proposed Borrowing is
[$__________] [for a Multicurrency Borrowing, list currency and amount
of such Multicurrency Borrowing].
[(v) The initial Interest Period for each
Eurocurrency Rate Advance made as part of the Proposed Borrowing is
__________ month[s].]
<PAGE> 176
2
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct on and as of the date of the Proposed Borrowing,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of the Proposed
Borrowing, in which case, as of such specific date.
(B) no Default has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom.
(C) if the Proposed Borrowing consists of a Revolving Credit
Borrowing or a Multicurrency Borrowing, the sum of the Loan Values of
the Eligible Collateral exceeds the aggregate principal amount of the
Revolving Credit Advances plus Swing Line Advances plus Letter of
Credit Advances to be outstanding plus Multicurrency Advances plus the
Available Amount of all Letters of Credit then outstanding plus the
Face Amount of all Bankers' Acceptances then outstanding after giving
effect to the Proposed Borrowing.
Manual delivery of an executed counterpart of this Notice of
Borrowing by telecopier shall be effective as delivery of an original executed
counterpart of this Notice of Borrowing.
Very truly yours,
[NAME OF BORROWER]
By
-------------------------------------
Title:
<PAGE> 177
EXHIBIT B-2 TO THE
CREDIT AGREEMENT
FORM OF NOTICE OF DRAWING
Citicorp USA, Inc., as
Collateral and Administrative
Agent under the Credit Agreement
referred to below
Attention:
---------------------------
Ladies and Gentlemen:
The undersigned, Handy & Harman of Canada, Limited, a
corporation organized under the laws of Ontario, Canada, refers to the Credit
Agreement dated as of July 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among the
undersigned, certain other borrowers parties thereto, the Initial Lenders named
therein, the Initial Issuing Banks named therein, and Citicorp USA, Inc., as
Collateral Agent and Administrative Agent, and hereby gives you notice,
irrevocably, pursuant to Section 2.04 of the Credit Agreement that the
undersigned hereby requests a Drawing under the Credit Agreement and, in that
connection, sets forth below the information relating to such Drawing (the
"Proposed Drawing") as required by Section 2.04(a) of the Credit Agreement:
(i) The Business Day of the Proposed Drawing is , .
(ii) The aggregate Face Amount of the Proposed Drawing is
CN$______.
(iii) The initial Maturity Date for each Banker's Acceptance
comprising part of the Proposed Drawing is [one][two][three][six]
months.
The undersigned hereby certifies that the following statements
are true on the date hereof and will be true on the date of the Proposed
Drawing:
(A) the representations and warranties contained in each Loan
Document are complete and correct on and as of the date of the Proposed
Drawing, before and after giving effect to such Proposed Drawing and to
the application of the proceeds therefrom, as though made on and as of
such date other than any such representations and warranties that, by
their terms, refer to a specific date other than the date of the
Proposed Drawing, in which case, as of such specific date;
(B) no event has occurred and is continuing, or would result
from the Proposed
<PAGE> 178
2
Drawing or from the application of the proceeds therefrom, that
constitutes a Default, and
(C) the sum of the Loan Values of the Eligible Collateral
exceeds the aggregate principal amount of the Revolving Credit Advances
plus Swing Line Advances plus Letter of Credit Advances plus
Multicurrency Advances to be outstanding plus the Available Amount of
all Letters of Credit then outstanding plus the Face Amount of all
Bankers' Acceptances to be outstanding after giving effect to the
Proposed Drawing.
Very truly yours,
HANDY & HARMAN OF
CANADA LIMITED
By:
----------------------------
Name:
Title:
<PAGE> 179
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 30,
1998 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the terms defined therein, unless
otherwise defined herein, being used herein as therein defined) among Handy &
Harman, a New York corporation, certain other borrowers parties thereto, the
Lender Parties party thereto, Citicorp USA, Inc., as Collateral Agent, and
Citicorp USA, Inc., as Administrative Agent for the Lender Parties.
Each "Assignor" referred to on Schedule 1 hereto (each, an
"Assignor") and each "Assignee" referred to on Schedule 1 hereto (each, an
"Assignee") agrees severally with respect to all information relating to it and
its assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse
except as to the representations and warranties made by it herein, to such
Assignee, and such Assignee hereby purchases and assumes from such Assignor, an
interest in and to such Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement Facility or Facilities specified on Schedule 1 hereto. After giving
effect to such sale and assignment, such Assignee's Commitments and the amount
of the Advances owing to such Assignee will be as set forth on Schedule 1
hereto.
2. Such Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest or interests being assigned by it
hereunder and that such interest or interests are free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note or Notes held by such
Assignor and requests that the Administrative Agent exchange such Note or Notes
for a new Note or Notes payable to the order of such Assignee in an amount equal
to the Commitments assumed by such Assignee pursuant hereto or new Notes payable
to the order of such Assignee in an amount equal to the Commitments assumed by
such Assignee pursuant hereto and such Assignor in an amount equal to the
Commitments retained by such Assignor under the
<PAGE> 180
2
Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. Such Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon any Agent, any Assignor or any other Lender Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender Party; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) such Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender Party thereunder and (ii) such
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement (other than its rights and obligations under the Loan Documents that
are specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Acceptance) and, if this Assignment and Acceptance
covers all of the remaining portion of the rights and obligations of such
Assignor under the Credit Agreement, such Assignor shall cease to be a party
thereto.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to such Assignee. Such
Assignor and such Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
<PAGE> 181
3
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Manual
delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of an original executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have
caused Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
<PAGE> 182
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
ASSIGNOR
Revolving Credit Facility
1Percentage interest assigned % % % % %
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Revolving Credit Commitment assigned $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Aggregate outstanding principal amount of
Revolving Credit Advances assigned $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Principal amount of Revolving Credit Note
payable to Assignor $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Term Facility
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
2Percentage interest assigned % % % % %
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Term Commitment assigned $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Outstanding principal amount of
Term Advance assigned $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Principal amount of Term Note
payable to Assignor $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Letter of Credit Facility
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Letter of Credit Commitment assigned $ $ $ $ $
- --------------------------------------------------------- ----------- ---------- ------------ ----------- -------------
Letter of Credit Commitment retained $ $ $ $ $
========================================================= =========== =========== ============= =========== ============
</TABLE>
- --------
1 If Nonratable Assignments are not permitted, the percentage interest
assigned by an Assignor must be the same for all Facilities (other than the
Letter of Credit Facility).
2 See footnote 1.
<PAGE> 183
2
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
ASSIGNEE
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Revolving Credit Facility
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
3Percentage interest assumed % % % % %
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Revolving Credit Commitment assumed $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Aggregate outstanding principal amount of
Revolving Credit Advances assumed $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Principal amount of Revolving Credit Note
payable to Assignee $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Term Facility
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
4Percentage interest assumed % % % % %
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Term Commitment assumed $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Outstanding principal amount of
Term Advance assumed $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Principal amount of Term Note
payable to Assignee $ $ $ $ $
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Letter of Credit Facility
- -------------------------------------------------------- ----------- ----------- ------------- ---------- -------------
Letter of Credit Commitment assumed $ $ $ $ $
========================================================= =========== =========== ============= =========== ============
</TABLE>
- --------
3 If Nonratable Assignments are not permitted, the percentage interest
assumed by an Assignee must be the same for all Facilities (other than the
Letter of Credit Facility).
4 See footnote 4.
Handy & Harman Credit Agreement
<PAGE> 184
3
Effective Date (if other than date of acceptance by Administrative Agent):
5_________ __, ____
Assignors
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
- --------
5 This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
<PAGE> 185
4
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurocurrency Lending Office:
<PAGE> 186
5
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurocurrency Lending Office:
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurocurrency Lending Office:
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurocurrency Lending Office:
<PAGE> 187
6
______________________, as Assignor
By________________________________________
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurocurrency Lending Office:
Accepted 6[and Approved] this ____
day of ___________, ____
CITICORP USA, INC.,
as Administrative Agent
By_________________________________
Title:
7[Approved this ____ day
of _____________, ____
HANDY & HARMAN
By_________________________________
Title: ]
- --------
6 Required if the Assignee is an Eligible Assignee solely by reason of
clause (a)(viii) or (b) of the definition of "Eligible Assignee".
7 See footnote 6.
<PAGE> 1
AMENDMENT NO. 4
TO
MANAGEMENT AGREEMENT
AMENDMENT NO. 4 dated as of April 13, 1998 to the Management
Agreement dated as of January 3, 1991, as amended by Amendment No. 1 dated as of
January 1, 1993, by Amendment No. 2 dated as of April 11, 1994, and as further
amended by Amendment No. 3 dated as of April 1, 1996 (as amended, the
"Management Agreement"), each by and between WPN Corp. ("WPN"), a New York
corporation having an office at 342 Madison Avenue, Suite 1510, New York, New
York 10173-1510 and WHX Corporation (the "Company"), a Delaware corporation
having an office at 110 East 59th Street, New York, New York 10022, pursuant to
its assumption of the Management Agreement from Wheeling-Pittsburgh Corporation
("WPC") under the terms of the Contribution and Assumption Agreement dated as of
July 26, 1994 between WPC and the Company.
W I T N E S S E T H :
WHEREAS, Handy & Harman ("H&H") is a wholly-owned subsidiary
of the Company; and
WHEREAS, H&H and the Company have entered into a Management
Agreement dated as of April 13, 1998 (the "H&H Management Agreement"), pursuant
to which the Company has caused and will continue to cause WPN to provide
certain management, advisory and consulting services to H&H and its subsidiaries
and
<PAGE> 2
H&H has agreed to pay to the Company $62,500 per month for an aggregate annual
payment of $750,000; and
WHEREAS, in consideration for WPN's increased duties under the
H&H Management Agreement, the parties wish to increase the compensation paid to
WPN under the terms of the Management Agreement as provided herein.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Section 3.01 of the Management Agreement is hereby amended
in its entirety effective as of April 13, 1998 to read as follows:
3.01 The Company shall pay WPN a fixed
monthly fee of $520,833.33 in advance on the
first day of each month.
2. Except as modified above, the terms and conditions of the
Management Agreement are hereby confirmed and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have duly executed this
Amendment No. 4 as of the date first above written.
WPN CORP.
By: /s/ Ronald LaBow
--------------------------------
Ronald LaBow, President
WHX CORPORATION
By:/s/ Howard Mileaf
--------------------------------
Howard Mileaf
Vice President - General Counsel
-2-
<PAGE> 1
WHEELING-PITTSBURGH CORPORATION
110 East 59th Street
New York, New York 10022
July 29, 1993
To: WPN Corp.
217 Stonehill Road
Pound Ridge, NY 10576
We are pleased to inform you that on July 29, 1993 the Board
of Directors of Wheeling-Pittsburgh Corporation (the "Company") granted you,
subject to stockholder approval of the grant within one (1) year of July 29,
1993, non-qualified stock options, to purchase 600,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company, at a price of $10.875
per Share.
No part of the option is currently exercisable. The option may
first be exercised with respect to 33.33% of the Shares at any time on or after
the date of shareholder approval of this option grant which is expected to be no
later than the next annual meeting of stockholders to be held in 1994 (the
"Approval Date"). The option may be exercised with respect to an additional
33.33% of the Shares at any time on or after the 1995 anniversary of the
Approval Date. The option may be exercised with respect to the remaining 33.34%
of the Shares at any time on or after the 1996 anniversary of the Approval Date.
You must purchase a minimum of 50 Shares or more (but not fractional shares)
each time you choose to purchase Shares, except to purchase the remaining Shares
available to you.
This option, to the extent not previously exercised, will
expire on April 29, 2003.
Unless at the time of the exercise of this option a
registration statement under the Securities Act of 1933, as amended (the "Act"),
is in effect as to such Shares, any Shares purchased by you upon the exercise of
this option shall be acquired for investment and not for sale or distribution,
and if the Company so requests, upon any exercise of this option, in whole or in
part, you will execute and deliver to the Company a certificate to such effect.
The Company shall not be obligated to issue any Shares pursuant to this option
if, in the opinion of counsel to the Company, the Shares to be so issued are
required to be registered or otherwise qualified under the Act or under any
other applicable statute, regulation or ordinance affecting
<PAGE> 2
the sale of securities, unless and until such Shares have been so registered or
otherwise qualified.
You understand and acknowledge that, under existing law,
unless at the time of the exercise of this option a registration statement under
the Act is in effect as to such Shares (i) any Shares purchased by you upon
exercise of this option may be required to be held indefinitely unless such
Shares are subsequently registered under the Act or an exemption from such
registration is available; (ii) any sales of such Shares made in reliance upon
Rule 144 promulgated under the Act may be made only in accordance with the terms
and conditions of that Rule (which, under certain circumstances, restrict the
number of shares which may be sold and the manner in which shares may be sold);
(iii) in the case of securities to which Rule 144 is not applicable, compliance
with Regulation A promulgated under the Act or some other disclosure exemption
will be required; (iv) certificates for Shares to be issued to you hereunder
shall bear a legend to the effect that the Shares have not been registered under
the Act and that the Shares may not be sold, hypothecated or otherwise
transferred in the absence of an effective registration statement under the Act
relating thereto or an opinion of counsel satisfactory to the Company that such
registration is not required; (v) the Company will place an appropriate "stop
transfer" order with its transfer agent with respect to such Shares; and (vi)
the Company has undertaken no obligation to register the Shares or to include
the Shares in any registration statement which may be filed by it subsequent to
the issuance of the shares to you. In addition, you understand and acknowledge
that the Company has no obligation to you to furnish information necessary to
enable you to make sales under Rule 144.
This option (or installment thereof) is to be exercised by
delivering to the Company a written notice of exercise in the form attached
hereto as Exhibit A, specifying the number of Shares to be purchased, together
with payment of the purchase price of the Shares to be purchased. The purchase
price is to be paid in cash or, at the discretion of the Stock Option Committee,
by delivering shares of the Company's stock already owned by you and having a
fair market value on the date of exercise equal to the exercise price of the
option, or a combination of such shares and cash, or otherwise in accordance
with the Plan.
Would you kindly evidence your acceptance of this option and
your agreement to comply with the provisions hereof
-2-
<PAGE> 3
and of the Plan by executing this letter under the words "Agreed To and
Accepted."
Very truly yours,
WHEELING-PITTSBURGH CORPORATION
By: /s/ Francis P. Massco
---------------------------------
Francis P. Massco, Vice President
AGREED TO AND ACCEPTED:
WPN CORP.
/s/ Ronald LaBow
- ----------------
Ronald LaBow
-3-
<PAGE> 4
EXHIBIT A
---------
Wheeling-Pittsburgh Corporation
110 East 59th Street
New York, New York 10022
Gentlemen:
Notice is hereby given of my election to purchase ______
shares of Common Stock, $.01 par value (the "Shares"), of Wheeling-Pittsburgh
Corporation at a price of $10.875 per Share, pursuant to the provisions of the
option granted to me on July 29, 1993. Enclosed in payment for the Shares is:
/ / my check in the amount of $________.
*/ / __________________ Shares having a total value
$______________, such value being based on the
closing price(s) of the Shares on the date hereof.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates
and Denominations ___________________
Name ___________________
Address ___________________
-------------------
-------------------
Social Security Number ___________________
Dated: _______________, 19__
Very truly yours,
--------------------------
*Subject to the approval of the
Stock Option Committee
-4-
<PAGE> 1
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement"), dated as of May 1, 1998,
will confirm that Handy & Harman, a New York corporation (the "Company") has
offered, and you have accepted, the position of Vice President, Planning and
Development of the Company.
1. The term of your employment shall be from May 1, 1998
through May 1, 1999, subject to earlier termination pursuant to the provisions
set forth below. After expiration of the term, unless the Agreement is extended
or a new employment agreement is entered into with the Company, you shall be an
employee at-will and entitled to all of the benefits including severance under
the Company's then applicable policies.
2. You agree to use your best efforts to promote the interest
of the Company and devote your full business time and energies to the business
and affairs of the Company. You agree to perform such services as are customary
to your position and as shall from time to time be assigned to you by the Board
of Directors of the Company.
3. Your annual base salary shall be no less than $210,000,
less applicable federal, state and local tax deductions, payable in accordance
with the Company's customary payroll practices. Any increases in your annual
salary shall be in the sole discretion of the Company's Board of Directors.
4. (a) You shall be eligible to participate in the following
compensation plans that may be offered from time to time by the Company, in
accordance with the terms and provisions of such plans and their successors and
assigns and subject to the discretion of the Company's Board of Directors: the
Handy & Harman Management Incentive Plan (the "Bonus
<PAGE> 2
Plan"), the Handy & Harman Long-Term Incentive Plan (the "Incentive Plan"), and
WHX Corporation's (the "Parent Company") 1991 Incentive and Non-Qualified Stock
Option Plan (the "Option Plan") in each case as described below.
(b) You shall be eligible to participate in the Bonus Plan
beginning in respect of the 1998 plan year; provided, however, that any bonus
amounts payable thereunder are contingent upon the Company's attainment of
performance goals established by the Company's Board of Directors in its sole
discretion.
(c) You shall be eligible to participate in the Incentive
Plan in respect of the future cycles from the date hereof; provided, however,
that any awards granted and any amounts payable thereunder are contingent upon
the Company's attainment of performance goals established by the Company's Board
of Directors.
(d) You shall be granted, effective as of April 23, 1998,
options (the "Options") to purchase 100,000 shares of common stock of the Parent
Company pursuant to the Option Plan. The Options shall (i) be granted under, and
subject to the terms of, the Option Plan, (ii) have a ten (10) year term
(subject to earlier termination as provided in the Option Plan and the form of
grant agreement thereunder), (iii) vest and become exercisable with respect to
one-third of the shares of common stock subject thereto on each of the first
three (3) anniversaries of the date of grant and (iv) have an exercise price per
share of common stock equal to the fair market value of the common stock as of
April 23, 1998.
5. (a) You shall be eligible to participate in all Company
employee benefit plans and programs which are made generally available to
salaried employees of the Company, in accordance with the terms and provisions
of such plans.
-2-
<PAGE> 3
(b) You shall be eligible to participate in the Handy &
Harman Supplemental Executive Retirement Plan and the Handy & Harman Executive
Life Insurance and Post-Retirement Life Insurance Program, in each case in
accordance with the terms and provisions of such plans.
(c) The Company shall reimburse you for annual financial,
estate and tax planning and tax preparation expenses up to a maximum of 3% of
your annual base salary in effect on January 1 of the tax year.
(d) You shall be provided with a Company-owned automobile
in accordance with the Company's existing policies and procedures in place for
other executive officers of the Company.
6. (a) The Company shall reimburse you for all reasonable
business expenses incurred by you in accordance with the Company's policies on
reimbursement for business expenses as then in effect.
(b) The Company shall reimburse you for annual membership
fees and expenses with respect to your membership in one country club selected
by you.
(c) You and your spouse shall be entitled to receive
post-retirement health insurance benefits from the Company under the Company's
Post-Retirement Medical Plan in effect for employees of the Company prior to
1992 on such terms and conditions in place for other employees covered by the
Plan.
7. (a) The Company may terminate your employment at any time,
without prior notice, for any of the following reasons: (i) your engaging in
conduct which is materially injurious to the Company or the Parent Company,
their subsidiaries or affiliates, or any of their
-3-
<PAGE> 4
respective customer or supplier relationships, monetarily or otherwise; (ii)
your engaging in any act of fraud, misappropriation or embezzlement or any act
which would constitute a felony (other than minor traffic violations); or (iii)
your material breach of this Agreement.
(b) If, as a result of your incapacity due to physical or
mental illness, you shall have been absent from the full-time performance of
your duties hereunder for at least 120 days within any twelve (12) consecutive
months, excluding vacation time actually used in accordance with the Company's
policies thereon, your employment may be terminated by the Company, upon written
notice in accordance with paragraph 8 hereof without further notice.
(c) The Company, in its sole discretion, may terminate
your employment at any time for any reason other than those stated in paragraphs
7(a) or 7(b) upon thirty (30) days prior written notice.
8. (a) If your employment is terminated by the Company
pursuant to paragraph 7(a), you shall receive your base salary through the date
of termination and the Company shall have no further obligations to you under
this Agreement.
(b) If your employment is terminated by the Company
pursuant to paragraph 7(b) or 7(c) or by your death, you or your personal
representative, guardian, or the representative of your estate shall be entitled
to the following severance and benefits:
(i) The Company shall pay you a severance payment (the
"Severance Payment") equal to one (1) year's full base salary at your highest
rate in effect during the twelve (12) months preceding the date on which the
Notice of Termination is given plus any Bonus Plan compensation you have
accrued;
-4-
<PAGE> 5
(ii) The Company shall pay you the Severance Payment
starting no later than the thirtieth (30th) day following the date of
termination. The Company shall pay the Severance Payment in equal installments
over the course of the twelve (12) months following the date of termination.
(iii) The Company or the Parent Company shall continue
to provide you or your family with life insurance (other than in the event of
termination of employment as a result of your death) medical and dental
insurance benefits, financial planning and a company-owned automobile,
substantially similar to those benefits which you are receiving or entitled to
receive prior to your termination of employment, for twelve (12) months
following the date of termination.
(iv) During the period you are receiving any payments
or benefits under paragraph 8(b), you agree to promptly notify the Company and
the Parent Company upon your acceptance of any other employment and upon your
eligibility for any medical benefits, insurance, financial planning or use of a
company-owned vehicle by your new employer, you shall no longer be eligible to
participate in the corresponding aspects of the Company's and the Parent
Company's benefit plans and arrangements.
9. You shall be entitled to terminate your employment for
"Good Reason", which shall mean the occurrence of one of the following
circumstances:
(i) a reduction in your annual base salary as in
effect on the date of such change;
(ii) the Company causes the relocation of the office
in which you are located prior to the change to a location more than fifty (50)
miles from Rye, New York, except for
-5-
<PAGE> 6
required travel on the business of the Company to an extent substantially
consistent with your present business travel obligations;
(iii) pursuant to an action taken by the Company, you
are selectively excluded from a compensation, bonus, stock option or stock
ownership plan otherwise in existence at the time of the change or thereafter
put into effect for the benefit of others in a similar situation unless
substantially equivalent benefits are provided to you;
(iv) except as a required by law, the failure to
continue to provide you with benefits at least as favorable as those enjoyed by
you under the employee benefit and welfare plans of the Company or the Parent
Company in which you were participating at the time of the change or the taking
of any action by the Company which would materially reduce any of the benefits
enjoyed by you at the time of the change; or
(v) the failure of the Company or the Parent Company
to obtain a satisfactory agreement from any successor to assume and agree to
perform this Agreement.
10. Upon the occurrence of any of the aforestated set forth in
Section 9, you shall for Good Reason upon notice pursuant to Section 16 hereof
to the Company, if such occurrence is not cured within 30 days of receipt of
such notice, be entitled to the following benefits:
(a) The Company shall pay you a severance payment (the
"Severance Payment") equal to one (1) year's full base salary at your highest
rate in effect during the twelve (12) months preceding the date on which the
Notice of Termination is given plus any Bonus Plan compensation you have
accrued;
(b) For a twelve (12) month period after termination of
your employment, the Company shall arrange to provide you with life, medical and
dental insurance benefits, financial
-6-
<PAGE> 7
planning and a company-owned automobile substantially similar to those which you
are receiving or entitled to receive immediately prior to the Notice of
Termination, unless you are eligible to receive such benefits from a subsequent
employer;
(c) The Company shall pay you the Severance Payment
starting no later than the thirtieth (30th) day following the date of
termination. The Company shall pay the Severance Payment in equal installments
over the course of the twelve (12) months following the date of termination.
11. Your continued employment shall not constitute consent to,
or as a waiver of rights with respect to, any circumstance constituting Good
Reason hereunder for a period of sixty (60) days following the occurrence of
such event, and thereafter such circumstance shall be deemed waived as an event
giving rise to a termination pursuant to Section 9.
12. Any termination of your employment by the Company, or by
you shall be communicated by written "Notice of Termination" to the other party
hereto in accordance with Section 16 hereof. For purposes of this Agreement, a
Notice of Termination shall mean a notice indicating the specific termination
provision in this Agreement relied upon and setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of your
employment under the provision so indicated. Further, you agree that upon
termination that you will resign effective as of the date of termination from
any and all directorships you may hold in the Company or the Parent Company and
their subsidiaries.
13. "Date of Termination" shall mean (30) days after the date
specified in the Notice of Termination.
-7-
<PAGE> 8
14. Arbitration; Certain Costs. Any dispute or controversy between the Company
or Parent Company and you, whether arising out of or relating to the Agreement,
the breach of the Agreement, or otherwise, shall be settled by arbitration
administered by the American Arbitration Association in accordance with its
Commercial Rules then in effect and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Such
arbitration shall take place in the New York City metropolitan area. The cost of
any arbitration proceeding hereunder shall be borne equally by the Company and
you. The arbitrator shall have the authority to award any remedy or relief that
a court of competent jurisdiction could order or grant, including, without
limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. In the event that it shall be necessary
or desirable for you to retain legal counsel and/or incur other costs and
expenses in connection with this arbitration provision, and provided that you
substantially prevail in the enforcement of such rights, the Company shall pay
(or you shall be entitled to recover from the Company, as the case may be) your
reasonable attorneys' fees and costs and expenses in connection with any
application under this arbitration provision, including the enforcement of any
arbitration award, up to $25,000 in the aggregate. Except as necessary in court
proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company.
-8-
<PAGE> 9
15. You have previously executed the Non-Competition Agreement
annexed hereto.
16. Any notices required by this Agreement shall be in writing
and shall be deemed to have been given when delivered by hand, sent by facsimile
(so long as an original is mailed within 24 hours of such facsimile
transmission), mailed by United States certified mail, return receipt requested,
postage prepaid, or sent by nationally-recognized overnight mail service, as
follows:
if to you:
Mr. Arnold Nance
10 Keeler Court
Ridgefield, CT. 06877
if to the Company:
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Paul Dixon
Senior Vice President and
General Counsel
and or to such other address as the parties may furnish to the other in writing
in accordance with this paragraph. Notices of change of address shall only be
effective upon receipt.
17. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of laws principles.
18. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, arrangements and understandings among the
Company and you with respect to such subject matter.
-9-
<PAGE> 10
This Agreement can be modified only by a writing signed by you and the Company.
If any provision of this Agreement shall be held to be void or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and
effect. This Agreement shall inure to the benefit of and be binding upon the
Company's successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
HANDY & HARMAN
By: /s/ Paul Dixon
----------------------------------------
Name: Paul Dixon
Title: Senior Vice President and General
Counsel
Agreed to this 1st day
of May, 1998
/s/ Arnold Nance
- -----------------------------
Arnold Nance
-10-
<PAGE> 11
Exhibit 10.16
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 dated as of December __, 1998 to the
Employment Agreement dated as of May 1, 1998 (the "Employment Agreement"), by
and between Handy & Harman (the "Company"), a New York corporation, and Arnold
Nance ("Employee").
W I T N E S S E T H :
WHEREAS, Employee is an employee of the Company; and
WHEREAS, Employee and the Company have entered into the
Employment Agreement, pursuant to which the Company has employed and will
continue to employ Employee as Vice President, Planning and Development of the
Company; and
WHEREAS, in consideration for Employee's performance under the
Employment Agreement, the parties wish to amend certain terms of the Employment
Agreement to provide for a one-year evergreen renewal, as provided herein.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Section 1 of the Employment Agreement is hereby amended in
its entirety effective as of the date hereof to read as follows:
1. The initial term of your employment shall be from
May 1, 1998 through May 1, 1999, subject to earlier
termination pursuant to the provisions set forth below, and
shall automatically be extended for successive one-year terms
unless either you or the Company shall advise the other upon
not more than 60 days nor less than 30 days notice that such
term shall not be renewed; provided that if the Agreement
shall not be renewed by the Company, you
-1-
<PAGE> 12
shall be entitled to the benefits set forth in Section 8(b)
hereof as if your employment had been terminated pursuant to
Section 7(c) hereof;
2. Except as modified above, the terms and conditions of the
Employment Agreement are hereby confirmed and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have duly executed this
Amendment No. 1 as of the date first above written.
HANDY & HARMAN
By: /s/ Robert LeBlanc
----------------------------
Name: Robert LeBlanc
Title: President and Chief
Executive Officer
Agreed to this 21st day
of December, 1998
/s/ Arnold Nance
- -----------------------
Arnold Nance
-2-
<PAGE> 1
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT effective as of the 23rd day of April, 1998, by
and among WHEELING-PITTSBURGH STEEL CORPORATION ("WPSC"), a Delaware corporation
with a principal place of business at 1134 Market Street, Wheeling, West
Virginia, 26003, WHX CORPORATION ("WHX"), a Delaware corporation with a
principal place of business at 110 East 59th Street, New York, New York, 10022
and WHEELING-PITTSBURGH CORPORATION ("WPC"), a Delaware corporation with a
principal place of business at 1134 Market Street, Wheeling, West Virginia,
26003 (WPSC, WHX and WPC are collectively referred to as the "Company") and
JAMES G. BRADLEY (the "Executive").
WHEREAS, the Company desires to employ the Executive as the President
and Chief Executive Officer of WPSC and the Executive Vice President of WHX and
the Executive desires to be employed by the Company upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive, and the
Executive hereby accepts such employment, as President and Chief Executive
Officer of WPSC and as Executive Vice President of WHX upon the terms and
subject to the conditions contained herein.
<PAGE> 2
Immediately following the execution of this Agreement and at all other
appropriate times thereafter, WHX, WPC and WPSC shall take all action to elect
the Executive as President and Chief Executive Officer of WPSC and Executive
Vice President of WHX.
(b) Executive agrees that subsequent to the consummation of an
underwritten initial public offering under the Securities Act of 1933, as
amended (an "Initial Public Offering") of WPC or a "spin-off" or sale of any
portion of the shares of Common Stock, or a sale of all or substantially all of
the assets, of WPC, Executive will resign as an officer of WHX or in the case of
an Initial Public Offering by WPSC or a "spin-off" or sale of any portion of the
shares of Common Stock, or a sale of all or substantially all of the assets, of
WPSC, as an officer of WPC also.
(c) WPSC, WPC and WHX represent and warrant to Executive that this
Agreement has been duly and validly authorized and executed by and on behalf of
each of them in accordance with their respective Certificate of Incorporation
and By-Laws and that this Agreement constitutes the lawful and valid obligation
of WPSC, WPC and WHX enforceable against each of WPSC, WPC and WHX in accordance
with its terms.
2. DUTIES.
(a) The Executive shall perform all duties of the positions
referenced in paragraph 1 of this Agreement consistent with the powers and
duties of such offices set forth in WPSC's, WPC's or WHX's, as appropriate,
By-Laws, as well as any other
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duties, commensurate with the Executive's positions that are assigned by the
Board of Directors of WPSC, WPC or WHX.
(b) Throughout his employment hereunder, Executive shall
devote his full time, attention, knowledge and skills during reasonable business
hours in furtherance of the business of the Company and will faithfully,
diligently and to the best of his ability perform the duties described above and
further the best interests of the Company. During his employment, the Executive
shall not engage, and shall not solicit any employees of the Company or their
respective subsidiaries to engage, in any commercial activities which are in any
way in competition with the activities of the Company or their respective
subsidiaries, or which may in any way interfere with the performance of his
duties or responsibilities to the Company.
(c) The Executive shall at all times be subject to, observe
and carry out such rules, regulations, policies, directions and restrictions as
the Company, consistent with Executive's rights and duties under this Agreement,
may from time to time establish and those imposed by law.
3. EXECUTIVE COVENANTS. In order to induce the Company to enter
into this Employment Agreement, the Executive hereby agrees as follows:
(a) Except when disclosure is in the interest of the Company
or is compelled by law, or disclosure is consented to or directed by the
Chairman or the Board of Directors (the "Board) of WPC, WHX or WPSC, the
Executive shall keep confidential and
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shall not divulge to any other person or entity, during the term of the
Executive's employment or thereafter, any of the business secrets or other
confidential information regarding the Company or the Company's other
subsidiaries which have not otherwise become public knowledge.
(b) All papers, books and records of every kind and
description relating to the business and affairs of the Company, whether or not
prepared by the Executive, shall be the sole and exclusive property of the
Company, and the Executive shall surrender them to the Company at any time upon
request by the Chairman or the Board of WPC, WHX or WPSC.
(c) During the term of Executive's employment hereunder, and
for a period of one (1) year thereafter, the Executive shall not, without the
prior written consent of the Board of WHX (i) participate as a director,
stockholder or partner, or have any direct or indirect financial interest as
creditor, in any business which directly or indirectly competes, within the
United States of America, with the Company or the Company's other subsidiaries
which exist as of the date of the termination of this Agreement (the "Existing
Subsidiaries"); provided, however, that nothing in this Agreement shall restrict
the Executive from holding up to two (2%) percent of the outstanding capital
stock or other securities of any publicly traded entity; (ii) solicit any
customers of the Company or its Existing Subsidiaries on behalf of himself, or
any other person, firm or company; or (iii) directly or indirectly, act in the
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capacity of an executive officer, employee or in any other capacity for any
company or other entity which competes with WPSC in the carbon steel
manufacturing industry and which has at least 5% of its annual dollar sales
comprised of products which directly compete with the Company's or its Existing
Subsidiaries' products; provided, however, that nothing in this paragraph 3(c)
shall prevent the Executive from holding or maintaining any positions or
interests presently held by him and disclosed to the Board of WHX, or, held by
him subsequent hereto with the consent of the Board of WHX.
(d) The parties agree that the Executive's services are unique
and that any breach or threatened breach of the provisions of this Section 3
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy. Accordingly, the Company shall, in addition to other
remedies provided by law, be entitled to such equitable and injunctive relief as
may be necessary to enforce the provisions of this Section 3 against the
Executive or any other person or entity participating in such breach or
threatened breach. Nothing contained herein shall be construed as prohibiting
the Company from pursuing any other and additional remedies available to it, at
law or in equity, for such breach or threatened breach including any recovery of
damages from the Executive or termination of his employment as provided in
Paragraph 9(b).
4. BASE SALARY AND BONUSES. As full compensation for Executive's
services hereunder and in exchange for his promises
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<PAGE> 6
contained herein, the Company shall compensate the Executive in the following
manner (subject to Paragraph 4(c)):
(a) BASE SALARY. The Company shall compensate Executive at the
base salary rate of Four Hundred Thousand United States Dollars ($400,000 U.S.)
per annum, payable in equal installments on the same basis as other senior
salaried officers of the Company. Such annual salary may be increased in the
future by such amounts and at such times as the Board of WHX or the Compensation
Committee thereof shall deem appropriate in its sole discretion.
(b) ANNUAL BONUSES. Beginning with the calendar year 1998 and
in each year or portion thereof thereafter during the term of this Agreement,
the Board of WHX or the Compensation Committee of WHX shall consider the
Executive for a cash performance bonus in accordance with the following terms:
The actual amount and timing of such bonus, if any, shall be determined in good
faith based on criteria reasonably deemed to be relevant to such determination
including, without limitation, the performance of the Executive, bonuses paid to
other senior executives of the Company, the overall performance of the Company
as measured by guidelines used to determine the bonuses of other senior
executives of the Company and transactions effected for the benefit of the
Company that are outside of the ordinary course of business and directly or
indirectly accomplished through the efforts of the Executive (e.g., business
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combinations, corporate partnering and other similar transactions).
(c) WITHHOLDINGS. The amounts set forth in subparagraphs (a)
and (b) above shall be subject to appropriate payroll withholding and any
similar deductions required by law.
(d) OPTIONS. In connection with the execution of this
Agreement, the Executive has been granted stock options ("Options") to purchase
260,000 shares of the common stock, $.01 par value, of WHX pursuant to the WHX
1991 Incentive and Nonqualified Stock Option Plan (the "1991 Option Plan")
pursuant to the terms of WHX's standard option agreement, subject to approval by
the stockholders of WHX of an increase in the number of shares of common stock
with respect to which options may be granted under the 1991 Option Plan. To the
maximum extent allowable under the Internal Revenue Code of 1986, as amended, a
portion of such options shall be "incentive stock options."
(e) INITIAL PUBLIC OFFERING. Upon the consummation of an
underwritten initial public offering under the Securities Act of 1933, as
amended (an "Initial Public Offering," including for this purpose a "spin-off"
that creates publicly traded securities) by WPC or WPSC (or any successor or
assign of either entity) during the term of this Agreement, the Executive shall
be granted such options and/or awarded such bonus or other payment as shall be
determined by the Board of Directors of the Company in its sole discretion. It
is the intention of the Company and the Executive to seek to negotiate in good
faith the basis for
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<PAGE> 8
determining such payment by August 31, 1998, however, if the basis is not
determined by August 31, 1998, the determination shall remain at the sole
discretion of the Board of Directors of the Company. Subject to payment of any
obligations required by this Section 4(e), from and after the consummation of
the Initial Public Offering or a "spin-off" of any portion of the shares of
Common Stock of WPC or WPSC, WHX, and in the case of a "spin-off" of any portion
of the Shares of Common Stock of WPSC, WPC and WHX shall be relieved of all
obligations under this Agreement, with no further action required by WHX and
WPC, as appropriate, to terminate its obligations hereunder.
5. LONG-TERM INCENTIVE PLAN. The Executive shall be entitled to
participate, to the extent he is eligible under the terms and conditions
thereof, in any stock option plan, stock award plan, omnibus stock plan, or
similar incentive plan currently in existence or hereafter established by the
Company, in the manner and to the same extent as the Company's other senior
executive officers, such participation to include 40,000 options under the 1991
WPC Incentive and Nonqualified Stock Option Plan ("1991 Plan"), which options
were granted upon the effectiveness of the Initial Employment Agreement, in
accordance with the provisions of the 1991 Plan. Awards to the Executive under
any such plan shall be made as provided in such plan and at such times and in
such amounts as shall be determined in the sole discretion reasonably exercised
of the Board of WHX subject to confirmation by the Board of WHX or the
Compensation Committee of
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<PAGE> 9
WHX (or the Board or Compensation Committee of WPC from and after the
consummation of the Initial Public Offering or a "spin-off" of any portion of
the shares of Common Stock of WPC or WPSC). Except as provided above, the
Executive shall not be entitled to participate in any bonus incentive or similar
plan for salaried employees of the Company and Executive's right to receive a
bonus shall be exclusively determined by the provisions of Paragraph 4(b)
hereof.
6. BENEFIT PLANS. During the term of his employment, the Executive
shall be entitled to participate in the Company's management employee benefits
and retirement plans, as they are in existence on the date of this Agreement, or
as they may be amended or added hereafter, to the same extent as the Company's
other senior executive officers. The Company shall be under no obligation solely
as a result of this Agreement to institute or continue the existence of any
employee benefit plan.
7. OTHER BENEFITS. The Executive shall be provided the following
additional benefits:
(a) LEASED AUTOMOBILE. A leased Buick, Cadillac, Continental
or comparable automobile of United States manufacture for his business and
personal use. The Company shall keep such automobile adequately insured and will
pay or reimburse the Executive for the cost of maintenance, repair and gasoline
for such automobile.
(b) CLUB MEMBERSHIPS. Reimbursement of the Executive for the
cost of his and his immediate family's membership in one
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<PAGE> 10
country club and his membership in one business club, and for his
business-related use thereof.
(c) LEGAL AND TAX ADVICE. In recognition of the Executive's
need to carefully consider the terms herein, the reimbursement of Executive for
reasonable legal and tax advice, sought by him relative to this Agreement, which
is incurred prior to his execution of this Agreement, up to a maximum of Fifteen
Thousand United States Dollars ($15,000 U.S.).
(d) BUSINESS EXPENSE. Reimbursement of the Executive, upon
proper accounting, for reasonable expenses and disbursements incurred by him in
the course of the performance of his duties hereunder.
(e) VACATION. The Executive shall be entitled to four (4)
weeks of vacation each year of this Agreement or such longer period as shall be
provided to senior executives of the Company, without reduction in salary.
(f) ANNUAL PHYSICAL. The Company shall pay the cost, or
reimburse Executive for any cost not covered by health insurance, of one
comprehensive physical examination during each year of this Agreement.
(g) RELOCATION BENEFIT. Executive shall be entitled to the
Company's standard relocation benefit for newly-hired senior executives.
8. PENSION. Provided Executive is in the continuous employ of the
Company from the date hereof through age 62, he shall be entitled upon
retirement to receive a retirement benefit
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<PAGE> 11
at the rate of $6,200 per month payable to the Executive for life. In the event
of the Executive's death prior to the payment of 120 monthly payments, the
payments shall be made to such person as the Executive shall designate to the
Company in writing until 120 monthly payments have been made.
9. DURATION AND TERMINATION.
(a) DURATION. The term of this Agreement shall commence on the
date hereof and shall terminate on the third anniversary hereof and shall
automatically be extended for successive three-year terms unless earlier
terminated pursuant to the provisions hereof, provided that the Company or the
Executive shall each have the right to terminate this Agreement at the end of
the initial term or any succeeding term on not less than sixty (60) days prior
written notice to the other party (in which event all rights and benefits of
Executive hereunder other than the pension benefit under Section 8 and except as
provided in this Section 9 shall cease upon such termination's effective date).
Upon termination of this Agreement for any reason, the Executive shall be deemed
to have resigned from all offices and director positions with the Company and
its Existing Subsidiaries.
(b) TERMINATION AT ANY TIME BY COMPANY. This Agreement shall
be terminable by the Company at any time for any reason, including death or
Disability (as hereinafter defined) of the Executive, upon not less than 30
days' prior written notice to the Executive and all rights and benefits of the
Executive hereunder (other than those arising under Section 10 hereof)
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<PAGE> 12
shall cease, except that the Executive will have the right to receive from the
Company (i) a payment of One Million and Two Hundred Thousand Dollars
($1,200,000) within thirty (30) days of delivery of the notice of termination or
within sixty (60) days of the date of death or Disability of the Executive (the
"Termination Payment"), (ii) all amounts accrued but unpaid hereunder up to and
including the date of termination including, without limitation, any pro rata
portion of the Executive's salary or bonus remaining unpaid as of the date of
termination, (iii) the pension benefit under Section 8 if vested at the date of
his termination and (iv) the continuation of all medical insurance provided to
the Executive as contemplated by Section 6 hereof for a period of one (1) year
following the termination date. Notwithstanding the foregoing, if the Company
terminates this Agreement "for cause", then no Termination Payment shall be made
to the Executive and all rights, benefits and obligations of the Executive under
this Agreement shall cease, except for the Executive's rights under Sections
9(b)(ii), 9(b)(iii) and 10 hereof and the pension benefit under Section 8 if
vested at the date of termination. "For cause" shall mean: (i) the Executive's
willful and material breach in respect of his duties under this Agreement if
such breach continues unremedied for thirty (30) days after written notice
thereof from the Board of WPC, WHX or WPSC to the Executive specifying the acts
constituting the breach and requesting that they be remedied; or (ii) the
Executive is convicted or pleads guilty to a felony,
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<PAGE> 13
during the employment period other than for conduct undertaken in good faith in
furtherance of the interests of the Company. "Disability" shall mean that due to
illness, accident or other physical or mental incapacity, the Board of WPC, WHX
or WPSC has in good faith determined that the Executive is unable to
substantially perform his usual and customary duties under this Agreement for
more than four (4) consecutive months or six (6) months in any calendar year.
During any period that the Executive fails to perform his duties hereunder as a
result of incapacity due to Disability prior to the Executive's termination, the
Executive shall continue to receive his full base salary, together with all
benefits provided in this Agreement.
(c) RIGHTS OF TERMINATION BY EXECUTIVE. The Executive shall
have the right, by written notice to the Company, to elect to terminate this
Agreement within sixty (60) days following a Change of Control (as defined
below) or if the Executive (i) is demoted (other than his removal as an officer
or director of WHX), or (ii) no longer holds the office of President or Chief
Executive Officer of WPSC. In the event that Executive makes such election, the
Executive shall be entitled to receive from the Company the items set forth in
Paragraph 9(b)(i) through 9(b)(iv) within sixty (60) days of receipt by the
Company of a written notice of Executive's election.
(d) CHANGE IN CONTROL. For the purposes of this Agreement, a
"Change in Control" means (i) the, direct or
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<PAGE> 14
indirect, sale, lease, exchange or other transfer of all or substantially all
(50% or more) of the assets of WPC, WHX or WPSC to any individual, corporation,
partnership, trust or other entity or organization (a "Person") or group of
Persons acting in concert as a partnership or other group (a "Group of Persons")
other than a Person (an "Affiliate") controlling, controlled by or under common
control with, any of WPC, WHX or WPSC, as the case may be, (ii) the merger,
consolidation or other business combination of WPC, WHX or WPSC with or into
another corporation with the effect that the shareholders of WPC, WHX or WPSC,
as the case may be, immediately prior to the business combination hold 50% or
less of the combined voting power of the then outstanding securities of the
surviving Person of such merger ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the election of directors,
(iii) the replacement of a majority of the Board of WPC, WHX or WPSC, over any
period of two years or less, from the directors who constituted the Board of
WPC, WHX or WPSC, as the case may be, at the beginning of such period, and such
replacement(s) shall not have been approved by the Board of WPC, WHX or WPSC, as
the case may be, as constituted at the beginning of such period, (iv) a Person
or Group of Persons shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") of
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<PAGE> 15
securities of WHX, or of WPC or WPSC following an Initial public Offering by
such company, representing 50% or more of the combined voting power of the then
outstanding securities of WHX, WPC or WPSC, as the case may be, ordinarily (and
apart from rights accruing under special circumstances) having the right to vote
in the election of directors. Notwithstanding the foregoing, an Initial Public
Offering or a "spin-off" of all or any portion of the shares of Common Stock of
WPC or WPSC shall not constitute a Change in Control under this Agreement.
10. INDEMNIFICATION. The Company shall defend and hold the Executive
harmless to the fullest extent permitted by applicable law and the Company's
By-Laws and Certificate of Incorporation in connection with any claim, action,
suit, investigation or proceeding arising out of or relating to performance by
the Executive of services for, or action of the Executive as, or arising by
reason of the fact that the Executive is or was, a Director, officer, employee
or agent of the Company or any parent, subsidiary or affiliate of the Company,
or of any other person or enterprise at the Company's request. Expenses incurred
by the Executive in defending a claim, action, suit, investigation or proceeding
shall be paid by the Company in advance of the final disposition thereof upon
the receipt by the Company of any undertaking by or on behalf of the Executive
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified hereunder. The foregoing rights are not exclusive and
do not limit any rights accruing to the
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<PAGE> 16
Executive under any other agreement or contract or under applicable law.
11. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
hereunder shall run in favor and be obligations of the Company, its successors
and assigns. The rights of the Executive hereunder shall inure to the benefit of
the Executive's legal representatives, executors, heirs and beneficiaries.
Termination of Executive's employment shall not operate to relieve him of any
remaining obligations under Section 3 hereof. The Company shall require any
successor or assign (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation or
otherwise) to all or a significant portion of the assets of the Company, by
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place. Except as otherwise provided in Section 4(e) regardless, of whether
such agreement is executed by a successor, this Agreement shall continue to be
binding upon the Company and any successor and assign in accordance with the
operation of law and such successor and assign shall be deemed the "Company" for
purposes of this Agreement.
12. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to
this Agreement or the breach thereof (including the
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arbitrability of any controversy or claim), shall be settled by arbitration in
the City of Pittsburgh, Commonwealth of Pennsylvania, by three arbitrators, one
of whom shall be appointed by the Company, one by the Executive and the third of
whom shall be appointed by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association, except with respect to the selection of arbitrators
which shall be as provided in this Section 12. The cost of any arbitration
proceeding hereunder shall be borne equally by the Company and the Executive.
The award of the arbitrators shall be binding upon the parties. Judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of his rights under this
Agreement, and provided that the Executive substantially prevails in the
enforcement of such rights, the Company shall pay (or the Executive shall be
entitled to recover from the Company, as the case may be) the Executive's
reasonable attorneys' fees and costs and expenses in connection with the
enforcement of his rights, including the enforcement of any arbitration award,
up to $50,000 in the aggregate.
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<PAGE> 18
13. NOTICES. All notices, requests, demands and other
communications hereunder must be in writing and shall be deemed to have been
duly given upon receipt if delivered by hand, sent by telecopier or courier, and
three (3) days after such communication is mailed within the continental United
States by first class certified mail, return receipt requested, postage prepaid,
to the other party, in each case addressed as follows:
(a) if to WHX, WPC or WPSC, as the case may be:
WHX Corporation
110 East 59th Street
New York, New York 10022
Attn: Corporate Secretary
Wheeling-Pittsburgh Corporation
1134 Market Street
Wheeling, West Virginia 26003
Attn: Corporate Secretary
Wheeling-Pittsburgh Steel Corporation
1134 Market Street
Wheeling, West Virginia 26003
Attn: Corporate Secretary
With a copy (which shall not constitute notice) to:
Steven Wolosky, Esquire
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
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<PAGE> 19
(b) if to the Executive:
James G. Bradley
218 Harbel Drive
St. Clairsville, Ohio 43950
with a copy (which shall not constitute notice) to:
Robert B. Williams, Esq.
Williams Coulson
1500 Two Chatham Center
Pittsburgh, Pennsylvania 15219
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
14. SEVERABILITY. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
15. PRIOR UNDERSTANDING. This Agreement embodies the entire
understanding of the parties hereto, and supersedes all other oral or written
agreements or understandings between them regarding the subject matter hereof.
No change, alteration or modification hereof may be made except in a writing,
signed by all parties hereto. The headings in this Agreement are for convenience
and reference only and shall not be construed as part of this Agreement or to
limit or otherwise affect the meaning hereof.
16. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be original,
but all such counterparts shall
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<PAGE> 20
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
17. CHOICE OF LAWS. Subject to the provisions of Paragraph 12 and
without regard to the effect of principles of conflicts of laws thereof,
jurisdiction over disputes with regard to this Agreement shall be exclusively in
the courts of the Commonwealth of Pennsylvania, and this Agreement shall be
construed in accordance with and governed by the laws of the Commonwealth of
Pennsylvania.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ John W. Testa
--------------------------------
Name: John W. Testa
Title: Vice President
WHX CORPORATION
By: /s/ Howard Mileaf
--------------------------------
Name: Howard Mileaf
Title: General Counsel
WHEELING-PITTSBURGH CORPORATION
By: /s/ John W. Testa
--------------------------------
Name: John W. Testa
Title: Vice President
/s/ James G. Bradley
------------------------------------
James G. Bradley
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<PAGE> 1
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement"), dated as of April 7, 1998,
will confirm that Handy & Harman, a New York corporation (the "Company") and WHX
Corporation, a Delaware corporation (the "Parent Company") have offered, and you
have accepted, the position of President and Chief Executive Officer of the
Company and Executive Vice President of the Parent Company.
1. The initial term of your employment shall be from April 7,
1998 through April 7, 2001, subject to earlier termination pursuant to the
provisions set forth below, and shall automatically be extended for successive
one-year terms unless either you or the Company shall advise the other upon not
more than 60 days nor less than 30 days notice that such term shall not be
renewed; provided that if the Agreement shall not be renewed by the Company, you
shall be entitled to the benefits set forth in Section 8(c) hereof as if your
employment had been terminated pursuant to Section 7(c) hereof.
2. You agree to use your best efforts to promote the interest
of the Company and the Parent, and devote your full business time and energies
to the business and affairs of the Company and the Parent. You agree to perform
such services as are customary to your position and as shall from time to time
be assigned to you by the Board of Directors of the Parent Company.
3. Your annual base salary shall be no less than $400,000,
less applicable federal, state and local tax deductions, payable in accordance
with the Company's and the Parent Company's customary payroll practices. Any
increases in your annual salary shall be in the sole discretion of the Parent
Company's Board of Directors.
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<PAGE> 2
4. (a) You shall be eligible to participate in the following
compensation plans that may be offered from time to time by the Company, in
accordance with the terms and provisions of such plans and their successors and
assigns and subject to the discretion of the Compensation Committee of the
Parent Company's Board of Directors (the "Committee"): the Handy & Harman
Management Incentive Plan (the "Bonus Plan"), the Handy & Harman Long-Term
Incentive Plan (the "Incentive Plan"), and the Parent Company's 1991 Incentive
and Non-Qualified Stock Option Plan (the "Option Plan") in each case as
described below.
(b) You shall be eligible to participate in the Bonus Plan
beginning in respect of the 1998 plan year; provided, however, that any bonus
amounts payable thereunder are contingent upon the Company's attainment of
performance goals established by the Committee in its sole discretion.
(c) You shall continue to be eligible and to participate in
the Incentive Plan in respect of the 1997-through-1999 cycle and subsequent
cycles; provided, however, that any awards granted and any amounts payable
thereunder are contingent upon the Company's attainment of performance goals
established by the Committee.
(d) You shall be granted, effective as of April 23, 1998,
options (the "Options") to purchase 260,000 shares of common stock of the Parent
Company pursuant to the Option Plan. The Options shall (i) be granted under, and
subject to the terms of, the Option Plan, (ii) have a ten (10) year term
(subject to earlier termination as provided in the Option Plan and the form of
grant agreement thereunder), (iii) vest and become exercisable with respect to
one-third of the shares of common stock subject thereto on each of the first
three (3) anniversaries of the date of
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<PAGE> 3
grant and (iv) have an exercise price per share of common stock equal to the
fair market value of the common stock as of April 23, 1998.
5. (a) You shall be eligible to participate in all Company and
Parent Company employee benefit plans and programs which are made generally
available to salaried employees of the Company and the Parent Company, in
accordance with the terms and provisions of such plans.
(b) You shall be eligible to participate in the Handy &
Harman Supplemental Executive Retirement Plan and the Handy & Harman Executive
Life Insurance and Post-Retirement Life Insurance Program, in each case in
accordance with the terms and provisions of such plans.
(c) The Company and the Parent Company shall reimburse you
for annual financial, estate and tax planning and tax preparation expenses up to
a maximum of 3% of your annual base salary in effect on January 1 of the tax
year.
(d) You shall be provided with a Company-owned automobile
in accordance with the Company's existing policies and procedures in place for
other executive officers of the Company.
6. (a) The Company and the Parent Company shall reimburse you
for all reasonable business expenses incurred by you in accordance with the
Company's and the Parent Company's policies on reimbursement for business
expenses as then in effect.
(b) The Company and the Parent Company shall reimburse you
for annual membership fees and expenses with respect to your membership in a
country club selected by you.
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(c) You and your spouse shall be entitled to receive
post-retirement health insurance benefits from the Company under the Company's
Post-Retirement Medical Plan in effect for employees of the Company prior to
1992 on such terms and conditions in place for other employees covered by the
Plan.
7. (a) The Company and the Parent Company may terminate your
employment at any time, without prior notice, for any of the following reasons:
(i) your engaging in conduct which is materially injurious to the Company or the
Parent Company, their subsidiaries or affiliates, or any of their respective
customer or supplier relationships, monetarily or otherwise; (ii) your engaging
in any act of fraud, misappropriation or embezzlement or any act which would
constitute a felony (other than minor traffic violations); or (iii) your
material breach of this Agreement.
(b) If, as a result of your incapacity due to physical or
mental illness, you shall have been absent from the full-time performance of
your duties hereunder for at least 120 days within any twelve (12) consecutive
months, excluding vacation time actually used in accordance with the Company's
or the Parent Company's policies thereon, your employment may be terminated by
the Company or the Parent Company, upon written notice in accordance with
paragraph 8 hereof without further notice.
(c) The Company or the Parent Company, in their sole
discretion, may terminate your employment at any time for any reason other than
those stated in paragraphs 7(a) or 7(b) upon thirty (30) days prior written
notice.
8. (a) If your employment is terminated by the Company or the
Parent Company pursuant to paragraph 7(a), you shall receive your base salary
through the date of
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termination and the Company or the Parent Company shall have no further
obligations to you under this Agreement.
(b) If your employment is terminated by the Company or the
Parent Company pursuant to paragraph 7(b) or by your death, you or your personal
representative, guardian, or the representative of your estate shall continue to
receive your then current base salary plus annual Bonus Plan awards equal to the
average annual Bonus Plan compensation you earned during the three preceding
years, through the end of the term or for a period of twenty-four (24) months,
whichever is longer, payable in accordance with the Company's or the Parent
Company's customary payroll practices. However, your base salary shall be offset
by any payment you receive pursuant to the Company's or the Parent Company's
disability plans and programs. Thereafter, the Company or the Parent Company
shall have no further obligations under this Agreement to you, your estate,
personal representative, guardian, or your beneficiaries.
(c) If your employment is terminated by the Company or the
Parent Company pursuant to paragraph 7(c), you shall be entitled to the
following severance and benefits:
(i) The Company or the Parent Company shall pay you a
severance payment (the "Severance Payment") equal to two (2) years' full base
salary at your highest rate in effect during the twelve (12) months preceding
the date on which the Notice of Termination is given plus two (2) times the
average annual Bonus Plan compensation you earned during the three (3) preceding
years. To the extent that the initial term of your employment exceeds
twenty-four (24) months, the Company or the Parent Company shall be responsible
for the severance for that period similarly calculated;
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(ii) The Company or the Parent Company shall pay you
the Severance Payment no later than the thirtieth (30th) day following the Date
of Termination.
(iii) During the period you are receiving any payments
or benefits under paragraphs 8(b) or 8(c), you agree to promptly notify the
Company and the Parent Company upon your acceptance of any other employment and
upon your eligibility for any medical benefits, insurance, financial planning or
use of a company-owned vehicle by your new employer, you shall no longer be
eligible to participate in the corresponding aspects of the Company's and the
Parent Company's benefit plans and arrangements.
9. You shall be entitled to terminate your employment for
"Good Reason", which shall mean the occurrence of one of the following
circumstances:
(i) if the Parent Company elects to sell or otherwise
reconstitute the Company such that a change would cause you to have a
substantial diminution in the nature or status of your responsibilities from
those in effect immediately prior to such change;
(ii) a reduction in your annual base salary as in
effect on the date of such change;
(iii) the Parent Company causes the relocation of the
office in which you are located prior to the change to a location more than
fifty (50) miles from Rye, New York, except for required travel on the business
of the Company or the Parent Company to an extent substantially consistent with
your present business travel obligations;
(iv) pursuant to an action taken by the Company or the
Parent Company, you are selectively excluded from a compensation, bonus, stock
option or stock ownership plan
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<PAGE> 7
otherwise in existence at the time of the change or thereafter put into effect
for the benefit of others in a similar situation unless substantially equivalent
benefits are provided to you;
(v) except as a required by law, the failure to
continue to provide you with benefits at least as favorable as those enjoyed by
you under the employee benefit and welfare plans of the Company or the Parent
Company in which you were participating at the time of the change or the taking
of any action by the Company which would materially reduce any of the benefits
enjoyed by you at the time of the change; or
(vi) the failure of the Company or the Parent Company
to obtain a satisfactory agreement from any successor to assume and agree to
perform this Agreement.
10. Upon the occurrence of any of the aforestated set forth in
Section 9, you shall for Good Reason upon notice pursuant to Section 16 hereof
to the Company or Parent Company, if such occurrence is not cured within 30 days
of receipt of such notice, be entitled to the following benefits:
(a) The Company or the Parent Company shall pay you a
severance payment (the "Severance Payment") equal to two (2) years' full base
salary at your highest rate in effect during the twelve (12) months preceding
the date on which the Notice of Termination is given plus two (2) times the
average annual Bonus Plan compensation you earned during the three preceding
years;
(b) For a twenty-four (24) month period after
termination of your employment, the Company or the Parent Company shall arrange
to provide you with life, medical and dental insurance benefits, financial
planning and a company-owned automobile substantially
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similar to those which you are receiving or entitled to receive immediately
prior to the Notice of Termination, unless you are eligible to receive such
benefits from a subsequent employer;
(c) The Company or the Parent Company shall pay you the
Severance Payment no later than the thirtieth (30th) day following the Date of
Termination.
11. Your continued employment shall not constitute consent to,
or as a waiver of rights with respect to, any circumstance constituting Good
Reason hereunder for a period of sixty (60) days following the occurrence of
such event, and thereafter such circumstance shall be deemed waived as an event
giving rise to a termination pursuant to Section 9.
12. Any termination of your employment by the Company, the
Parent Company or by you shall be communicated by written "Notice of
Termination" to the other party hereto in accordance with Section 16 hereof. For
purposes of this Agreement, a Notice of Termination shall mean a notice
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provision so
indicated. Further, you agree that upon termination that you will resign
effective as of the date of termination from any and all directorships you may
hold in the Company or the Parent Company and their subsidiaries.
13. "Date of Termination" shall mean (30) days after the date
specified in the Notice of Termination.
14. Arbitration; Certain Costs. Any dispute or controversy
between the Company or Parent Company and you, whether arising out of or
relating to the Agreement, the breach of the Agreement, or otherwise, shall be
settled by arbitration administered by the American Arbitration Association in
accordance with its Commercial Rules then in effect and judgment on the award
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<PAGE> 9
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Such arbitration shall take place in the New York City metropolitan
area. The cost of any arbitration proceeding hereunder shall be borne equally by
the Company and you. The arbitrator shall have the authority to award any remedy
or relief that a court of competent jurisdiction could order or grant,
including, without limitation, the issuance of an injunction. However, either
party may, without inconsistency with this arbitration provision, apply to any
court having jurisdiction over such dispute or controversy and seek interim
provisional, injunctive or other equitable relief until the arbitration award is
rendered or the controversy is otherwise resolved. In the event that it shall be
necessary or desirable for you to retain legal counsel and/or incur other costs
and expenses in connection with this arbitration provision, and provided that
you substantially prevail in the enforcement of such rights, the Company or
Parent Company shall pay (or you shall be entitled to recover from the Company
or Parent Company, as the case may be) your reasonable attorneys' fees and costs
and expenses in connection with any application under this arbitration
provision, including the enforcement of any arbitration award, up to $50,000 in
the aggregate. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company or Parent Company.
15. You have previously executed the Non-Competition Agreement
annexed hereto.
16. Any notices required by this Agreement shall be in writing
and shall be deemed to have been given when delivered by hand, sent by facsimile
(so long as an original is mailed within 24 hours of such facsimile
transmission), mailed by United States certified mail, return
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receipt requested, postage prepaid, or sent by nationally-recognized overnight
mail service, as follows:
if to you:
Mr. Robert D. LeBlanc
83 Keeler Drive
Ridgefield, Connecticut 06877
if to the Company:
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Paul E. Dixon, Esq.
Senior Vice President
and General Counsel
if to the Parent Company:
WHX Corporation
110 East 59th Street, 30th Floor
New York, New York 10022
Attention: General Counsel
and or to such other address as the parties may furnish to the other in writing
in accordance with this paragraph. Notices of change of address shall only be
effective upon receipt.
17. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of laws principles.
18. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, arrangements and understandings among the
Company, the Parent Company and you with respect to such subject matter. This
Agreement can be modified only by a writing signed by you, the Company and the
Parent Company. If any provision of this Agreement shall be held to be void or
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<PAGE> 11
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect. This Agreement shall inure to the benefit of and be binding
upon the Company's and the Parent Company's successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
HANDY & HARMAN
By: /s/ Paul Dixon
----------------------------------------
Name: Paul Dixon
Title: Senior Vice President and General
Counsel
WHX CORPORATION
By: /s/ Howard Mileaf
----------------------------------------
Name: Howard Mileaf
Title: General Counsel
Agreed to this 18th day
of June, 1998
/s/ Robert D. LeBlanc
- ----------------------------------------
Robert D. LeBlanc
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<PAGE> 1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of the 24th day of December, 1998, by
and between WHEELING-PITTSBURGH STEEL CORPORATION ("WPSC"), a Delaware
corporation with a principal place of business at 1134 Market Street, Wheeling,
West Virginia, 26003, WHX CORPORATION ("WHX"), a Delaware corporation with a
principal place of business at 110 East 59th Street, New York, New York, 10022
and WHEELING-PITTSBURGH CORPORATION ("WPC"), a Delaware corporation with a
principal place of business at 1134 Market Street, Wheeling, West Virginia,
26003 (WPSC, WHX and WPC are collectively referred to as the "Company") and Paul
J. Mooney (the "Executive").
WHEREAS, the Executive is employed by the Company pursuant to an
Employment Agreement dated as of October 17, 1997 (the "Initial Employment
Agreement") and the parties hereto each desire to amend and restate the Initial
Employment Agreement upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto do agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive, and the
Executive hereby accepts such employment, as Executive Vice President and Chief
Financial Officer of WPC and WPSC and Vice President of WHX, with his principal
office being located in either Pittsburgh,
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Pennsylvania, Wheeling, West Virginia or in a geographic area around the
Pittsburgh, Pennsylvania area no farther in distance than Wheeling, West
Virginia, upon the terms and subject to the conditions contained herein.
(b) Executive agrees that effective upon an Initial Public
Offering (as hereinafter defined) or Sale Transaction (as hereinafter defined)
of WPC, Executive will resign as an officer of WHX or, in the case of an Initial
Public Offering or Sale Transaction of WPSC, as an officer of WPC also.
(c) WPSC, WPC and WHX represent and warrant to Executive that
this Agreement has been duly and validly authorized and executed by and on
behalf of each of them in accordance with their respective Certificate of
Incorporation and By-Laws and that this Agreement constitutes the lawful and
valid obligation of WPSC, WPC and WHX enforceable against each of WPSC, WPC and
WHX in accordance with its terms.
2. DUTIES.
(a) The Executive shall perform all duties of the positions
referenced in paragraph 1 of this Agreement consistent with the powers and
duties of such offices set forth in WPSC's, WPC's or WHX's, as appropriate,
By-Laws, as well as any other duties, commensurate with the Executive's
positions that are assigned by the Board of Directors of WPSC, WPC or WHX.
(b) Throughout his employment hereunder, Executive shall
devote his full time, attention, knowledge and skills during reasonable business
hours in furtherance of the business of the Company and will faithfully,
diligently and to the best of his ability perform the duties described above and
further the best interests of the Company or its subsidiaries. During
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his employment, the Executive shall not engage, and shall not solicit any
employees of the Company to engage, in any commercial activities which are in
any way in competition with the activities of the Company or its subsidiaries,
or which may in any way interfere with the performance of his duties or
responsibilities to the Company.
(c) The Executive shall at all times be subject to, observe
and carry out such rules, regulations, policies, directions and restrictions as
the Company, consistent with Executive's rights and duties under this Agreement,
may from time to time establish and those imposed by law.
3. EXECUTIVE COVENANTS. In order to induce the Company to enter into
this Agreement, the Executive hereby agrees as follows:
(a) Except when disclosure is in the interest of the Company
or is compelled by law, or disclosure is consented to or directed by the
Chairman or the Board of Directors (the "Board") of WPC, WHX or WPSC, the
Executive shall keep confidential and shall not divulge to any other person or
entity, during the term of the Executive's employment or thereafter, any of the
business secrets or other confidential information regarding the Company or the
Company's other subsidiaries which have not otherwise become public knowledge.
(b) All papers, books and records of every kind and
description relating to the business and affairs of the Company, whether or not
prepared by the Executive, shall be the sole and exclusive property of the
Company, and the Executive shall surrender them to the Company at any time upon
request by the Chairman or the Board of WPC, WHX or WPSC.
(c) During the term of Executive's employment hereunder, and
for a period of three (3) years thereafter, the Executive shall not, without the
prior written consent of the Board
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<PAGE> 4
of WHX (i) participate as a director, stockholder or partner, or have any direct
or indirect financial interest as creditor, in any business which directly or
indirectly competes, within the United States of America, with the Company or
the Company's other subsidiaries which exist now or as of the date of the
termination of this Agreement (the "Existing Subsidiaries"); provided, however,
that nothing in this Agreement shall restrict the Executive from holding up to
two (2%) percent of the outstanding capital stock or other securities of any
publicly traded entity; (ii) solicit any customers of the Company or its
Existing Subsidiaries on behalf of himself, or any other person, firm or
company; or (iii) directly or indirectly, act in the capacity of an executive
officer, employee or in any other capacity for any company or other entity which
competes with WPSC in the carbon steel manufacturing industry and which has at
least 5% of its annual dollar sales comprised of products which directly compete
with the Company's or the Existing Subsidiaries' products; provided, however,
that nothing in this paragraph 3(c) shall prevent the Executive from holding or
maintaining any positions or interests held by him subsequent hereto with the
consent of the Board of WHX (or the Board of WPC from and after the consummation
of an Initial Public Offering or Sale Transaction of WPC or the Board of WPSC
from and after the consummation of an Initial Public Offering or Sale
Transaction by WPSC.
(d) The parties agree that the Executive's services are unique
and that any breach or threatened breach of the provisions of this Section 3
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy. Accordingly, the Company shall, in addition to other
remedies provided by law, be entitled to such equitable and injunctive relief as
may be necessary to enforce the provisions of this Section 3 against the
Executive or any other person or entity participating in such breach or
threatened breach.
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Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other and additional remedies available to it, at law or in equity,
for such breach or threatened breach including any recovery of damages from the
Executive or termination of his employment as provided in Paragraph 9(b).
4. BASE SALARY AND BONUSES. As full compensation for Executive's services
hereunder and in exchange for his promises contained herein, the Company shall
compensate the Executive in the following manner (subject to Paragraph 4(c)):
(a) BASE SALARY. The Company shall compensate Executive at the
base salary rate of Two Hundred Seventy-Five Thousand United States Dollars
($275,000 U.S.) per annum, payable in equal installments on the same basis as
other senior salaried officers of the Company. Such annual salary may be
increased in the future by such amounts and at such times as the Board of WHX or
the Compensation Committee thereof (or the Board or Compensation Committee of
(x) WPC from and after the consummation of an Initial Public Offering or Sale
Transaction of WPC or (y) WPSC from and after the consummation of an Initial
Public Offering or Sale Transaction of WPSC) shall deem appropriate in its sole
discretion.
(b) BONUSES.
(i) SIGNING BONUS: The Executive has received $90,000 of a
signing bonus of One Hundred Twenty Thousand United States
Dollars ($120,000 U.S.) in accordance with the Initial
Employment Agreement, the receipt of which is hereby
acknowledged. The Executive shall be entitled to receive
the balance thereof of $30,000 on October 17, 1999.
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(ii) ANNUAL BONUSES: Beginning with the calendar year 1998
and in each year or portion thereof thereafter during the
term of this Agreement, the Board of WHX or the
Compensation Committee of WHX (or the Board or
Compensation Committee of (x) WPC from and after the
consummation of the Initial Public Offering or Sale
Transaction of WPC or (y) WPSC from and after the
consummation of an Initial Public Offering or Sale
Transaction of WPSC) shall grant the Executive a bonus in
accordance with the terms of WPSC's Management Incentive
Program.
(c) WITHHOLDINGS. The amounts set forth in subparagraphs (a)
and (b) above shall be subject to appropriate payroll withholding and any
similar deductions required by law.
(d) INITIAL PUBLIC OFFERING; SALE. During the term of this
Agreement, upon (i) the consummation of an underwritten initial public offering
under the Securities Act of 1933, as amended (an "Initial Public Offering,"
including for this purpose a "spin-off" that creates publicly traded securities)
of WPC or WPSC (or any successor or assign of either entity) or (ii)(x) the,
direct or indirect, sale, lease, exchange or other transfer of all or
substantially all (50% or more) of the assets or capital stock of WPC or WPSC to
any individual, corporation, partnership, trust or other entity or organization
(a "Person") or group of Persons acting in concert as a partnership or other
group (a "Group of Persons") other than a Person (an "Affiliate") controlling,
controlled by or under common control with, any of WPC, WHX or WPSC, as the case
may be, or (y) the merger, consolidation or other business combination of WPC or
WPSC with or into another corporation with the effect that the shareholders of
WPC or WPSC, as the case may be, immediately prior to the business combination
hold 50% or less of
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the combined voting power of the then outstanding securities of the surviving
Person of such merger ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors ((ii)(x) or
(ii)(y) being a "Sale Transaction"), the Company shall pay to the Executive,
within thirty (30) days after the date of the closing of the Initial Public
Offering or Sale Transaction, the sum of (i) One Million Dollars ($1,000,000)
(the "Payment") plus, if all or any portion of the Payment is subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Excise Tax"), an additional amount (the "Gross Up Amount"), so that the amount
retained by the Executive (net of any Excise Tax on the Payment and the Gross Up
Amount and any federal, state and local income tax on the Gross Up Amount
(calculated using the highest marginal rates applicable to individuals)) shall
be equal to the Payment and (ii) Eight Hundred Twenty-Five Thousand Dollars
($825,000) (the "Additional Payment"). In the event that during the term of this
Agreement and prior to an Initial Public Offering or Sale Transaction a WHX
Change of Control (as hereinafter defined) shall occur, the Company shall pay to
the Executive, within thirty (30) days after the date of the WHX Change of
Control, the Additional Payment. For purposes of this Agreement, WHX Change of
Control means (i) the direct or indirect, sale, lease, exchange or other
transfer of all or substantially all (50% or more) of the assets of WHX to a
Person or Group of Persons other than an Affiliate controlling, controlled by or
under common control with, WHX, (ii) the merger, consolidation or other business
combination of WHX with or into another corporation with the effect that the
stockholders of WHX immediately prior to the business combination hold 50% or
less of the combined voting power of the then outstanding securities of the
surviving Person of such merger ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in
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the election of directors, (iii) the replacement of a majority of the Board of
WHX over any period of two years or less, from the directors who constituted the
Board of WHX at the beginning of such period, and such replacement(s) shall not
have been approved by the Board of WHX as constituted at the beginning of such
period, (iv) a Person or Group of Persons shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") of securities of WHX representing 50% or more of the combined voting power
of the then outstanding securities of WHX ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors. If an Initial Public Offering or Sale Transaction shall occur
after a WHX Change of Control and the Executive shall have received or shall
have the right to receive the Additional Payment (but for the 30 day payment
period) then, upon an Initial Public Offering or Sale Transaction the Executive
shall only be entitled to receive the Payment and Gross Up Amount as applicable.
From and after the consummation of an Initial Public Offering or Sale
Transaction involving WPC or WPSC, WHX, and in the case of an Initial Public
Offering or a Sale Transaction involving WPSC, WPC and WHX, shall be relieved of
all obligations under this Agreement (other than the obligation to make the
Payment required by this Paragraph 4), with no further action required by WHX
and WPC, as appropriate, to terminate its obligations hereunder. The Payment
shall not preclude, set off or be in lieu of Executive's participation in any
option pool created by WPC or WPSC in connection with an Initial Public Offering
or Sale Transaction.
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5. LONG-TERM INCENTIVE PLAN. The Executive shall be entitled to
participate, to the extent he is eligible under the terms and conditions
thereof, in any stock option plan, stock award plan, omnibus stock plan, or
similar incentive plan currently in existence or hereafter established by the
Company, in the manner and to the same extent as the Company's other senior
executive officers, such participation to include 40,000 options under the 1991
WPC Incentive and Nonqualified Stock Option Plan ("1991 Plan"), which options
were granted upon the effectiveness of the Initial Employment Agreement, in
accordance with the provisions of the 1991 Plan. Awards to the Executive under
any such plan shall be made as provided in such plan and at such times and in
such amounts as shall be determined in the sole discretion reasonably exercised
of the Stock Option Committee of WHX subject to confirmation by the Board of WHX
or the Compensation Committee of WHX (or the Board or Compensation Committee of
WPC from and after the consummation of an Initial Public Offering or Sale
Transaction of WPC or the Board or Compensation Committee of WPSC from and after
the consummation of an Initial Public Offering or Sale Transaction of WPSC).
Except as provided above, the Executive shall not be entitled to participate in
any bonus incentive or similar plan for salaried employees of the Company and
Executive's right to receive a bonus shall be exclusively determined by the
provisions of Paragraph 4(b) hereof.
6. BENEFIT PLANS. During the term of his employment, the Executive shall
be entitled to participate in the Company's management employee benefits and
retirement plans, as they are in existence on the date of this Agreement, or as
they may be amended or added hereafter, to the same extent as the Company's
other senior executive officers. The Company shall be under no
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obligation solely as a result of this Agreement to institute or continue the
existence of any employee benefit plan.
7. OTHER BENEFITS. The Executive shall be provided the following
additional benefits:
(a) LEASED AUTOMOBILE. A leased Buick, Oldsmobile, Mercury or
comparable automobile of United States manufacture for his business and personal
use. The Company shall keep such automobile adequately insured and will pay or
reimburse the Executive for the cost of maintenance, repair and gasoline for
such automobile.
(b) CLUB MEMBERSHIPS. Reimbursement of the Executive for the
cost of his and his immediate family's membership in one country club, including
reimbursement of a $10,000 voting transfer fee to be paid or payable by the
Executive, and his membership in one business club, and for his business-related
use for both clubs.
(c) LEGAL AND TAX ADVICE. In recognition of the Executive's
need to carefully consider the terms herein, the reimbursement of Executive for
reasonable legal and tax advice, sought by him relative to this Agreement, which
is incurred prior to his execution of this Agreement, up to a maximum of Twenty
Thousand United States Dollars ($20,000 U.S.).
(d) BUSINESS EXPENSE. Reimbursement of the Executive, upon
proper accounting, for reasonable expenses and disbursements incurred by him in
the course of the performance of his duties hereunder.
(e) VACATION. The Executive shall be entitled to four (4)
weeks of vacation each year of this Agreement or such longer period as shall be
provided to senior executives of the Company, without reduction in salary.
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(f) ANNUAL PHYSICAL. The Company shall pay the cost, or
reimburse Executive for any cost not covered by health insurance, of one
comprehensive physical examination during each year of this Agreement.
8. SUPPLEMENTAL PENSION. As additional compensation, the Company will
provide nonqualified deferred compensation to the Executive after termination of
his employment. The amount of the deferred compensation will be measured solely
by the cash surrender value, at the time payment of the deferred compensation is
due, of one or more life insurance contracts (as defined in Internal Revenue
Code ss. 7702) on the life of the Executive, purchased by or on behalf of the
Company solely with the annual premiums described below. Such life insurance
contracts shall provide such insurance coverage and contract terms (consistent
with the premium limits described below), and shall be purchased from such one
or more insurance companies, as shall be acceptable to the Executive.
On the first business day of each calendar year during the Executive's
service under this Agreement (or under the Initial Employment Agreement), the
Company shall provide for the payment of total premiums, under all such life
insurance contracts in the aggregate, equal to the sum of:
1. Twenty-Five Thousand Dollars ($25,000) annual lump sum
provided by the Company without reduction of the Executive's
regular salary or performance bonus otherwise payable under
this Agreement (or under the Initial Employment Agreement)
during the calendar year.
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2. An additional annual amount equal to the amount, if any, by
which the Executive has elected to have his regular salary,
otherwise payable in cash during the calendar year, reduced
for this purpose.
3. An additional annual amount equal to the amount, if any, by
which the Executive has elected to have his performance bonus
(if any), otherwise payable in cash during the calendar year,
reduced for this purpose.
The Executive shall elect in writing, no later than the end of
the preceding calendar year, the specific amounts (or definite formula to
determine the specific amounts) of additional premiums to be paid for in each
calendar year by reduction of his regular salary or bonus payments. However,
such additional premium amounts shall be limited in the aggregate (or, at the
Executive's election, insurance coverage shall be augmented as necessary) so
that the additional premium amount applied to any insurance contract in any
calendar year is less than the amount that would cause such contract to be
classified as a modified endowment contract under Internal Revenue Code Section
7702A.
The Company or the Deferred Compensation Trust described hereinafter
(the "Deferred Compensation Trust" or "Trust") shall be the sole owner of all
such life insurance contracts, except that the Executive, at his election, shall
have the right to designate the beneficiary of death benefits under the
contracts.
In the event of the Executive's death while the life insurance
contracts are in force and owned by the Company or the Deferred Compensation
Trust, the insurance companies' payment of death benefits thereunder to the
Executive's designated beneficiary (the "Beneficiary") shall totally discharge
the Company's obligation under this Section 8, except that the Company or the
-12-
<PAGE> 13
Trust shall pay to such Beneficiary any salary or bonus reduction amounts
elected by the Executive for the calendar year in which his death occurs to the
extent that such amounts have not been paid to insurance companies as additional
premiums during that calendar year.
The Company will set aside assets in the Deferred Compensation Trust to
provide for the systematic funding, during the Executive's period of active
service, of the deferred compensation promised to the Executive under this
Agreement. Such Deferred Compensation Trust (which may also include assets set
aside to fund other similar deferred compensation obligations of the Company)
shall be irrevocable except in the event of the Company's subsequent bankruptcy
or insolvency, in which case the assets of the Trust shall be subject to the
claims of the Company's general creditors, including the Executive. The Company
intends, and the Executive acknowledges, that the Executive's rights under this
Agreement shall be solely those of a general creditor of the Company, and
nothing in this Agreement nor in any instruments creating the Deferred
Compensation Trust nor in any life insurance contract, shall be construed to
create any rights in the Executive superior to those of other general creditors
of the Company.
The Company intends that the Deferred Compensation Trust shall make all
payments due under this Agreement to the Executive or his Beneficiary, to the
extent the Trust is funded. The Executive acknowledges, on behalf of himself and
any Beneficiary claiming under him, that the Company is absolved of any
liability or responsibility for any payment due hereunder to the extent such
payment shall have been duly made to the Executive (or Beneficiary, as the case
may be) by the Deferred Compensation Trust.
-13-
<PAGE> 14
The deferred compensation provided hereunder shall be paid to the
Executive in accordance with the life insurance contracts obtained pursuant to
the first paragraph of this Section 8.
9. DURATION AND TERMINATION.
(a) DURATION. The term of this Agreement shall commence on the
date hereof and shall terminate on the third anniversary of the date hereof,
except as otherwise provided herein, and shall automatically be extended for
successive three-year terms unless earlier terminated pursuant to the provisions
hereof, provided that the Company and the Executive shall each have the right to
terminate this Agreement at the end of the initial term or any succeeding term
on not less than sixty (60) days prior written notice to the other party (in
which event all rights and benefits of Executive hereunder other than the
supplemental pension benefit under Section 8 shall cease upon such termination's
effective date). Upon the termination of this Agreement for any reason, the
Executive shall be deemed to have resigned from all officer and director
positions with the Company and its Existing Subsidiaries.
(b) TERMINATION AT ANY TIME BY COMPANY. This Agreement shall
be terminable by the Company at any time for any reason, including death or
Disability (as hereinafter defined) of the Executive, upon not less than 30
days' prior written notice to the Executive and all rights and benefits of the
Executive hereunder (other than those arising under Section 10 hereof) shall
cease, except that the Executive will have the right to receive from the Company
(i) $825,000 immediately following the date of termination (less an amount equal
to the portion of the Twenty-Five Thousand ($25,000) Dollar per annum payment
made pursuant to Section 8 for the calendar year in which termination of
employment occurred which represents
-14-
<PAGE> 15
the pro-rata portion of the payment for the balance of such calendar year, I.E.,
if the last date of employment is July 1, then Twelve Thousand and Five Hundred
($12,500) Dollars shall be deducted from the Eight Hundred Twenty-Five Thousand
($825,000) Dollars payment obligation) within thirty (30) days of delivery of
the notice of termination (the "Termination Payment"), (ii) all amounts accrued
but unpaid hereunder up to and including the date of termination including,
without limitation, any pro rata portion of the Executive's salary or bonus
remaining unpaid as of the date of termination, (iii) all of the supplemental
pension benefits accrued under Section 8 and (iv) the continuation of all
medical insurance provided to the Executive as contemplated by Section 6 hereof
for a period of one (1) year following the termination date PROVIDED HOWEVER
that the Company shall not be required to make the Termination Payment under
this Section 9(b)(i), if prior to the date of termination of this Agreement by
the Company pursuant to this Section 9(b), the Executive shall have previously
received or shall have the right to receive (but for the passage of the 30 day
payment period) the Additional Payment pursuant to Section 4(d) of the
Agreement. Notwithstanding the foregoing, if the Company terminates this
Agreement "for cause", then no Termination Payment shall be made to the
Executive and all rights, benefits and obligations of the Executive under this
Agreement shall cease, except the Executive's rights under Sections 8, 9(b)(ii),
9(b)(iii) and 10 hereof. "For cause" shall mean: (i) the Executive's willful and
material breach in respect of his duties under this Agreement if such breach
continues unremedied for thirty (30) days after written notice thereof from the
Board of WPC, WHX or WPSC to the Executive specifying the acts constituting the
breach and requesting that they be remedied; or (ii) the Executive is convicted
or pleads guilty to a felony, during the employment period other than for
conduct
-15-
<PAGE> 16
undertaken in good faith in furtherance of the interests of the Company.
"Disability" shall mean that due to illness, accident or other physical or
mental incapacity, the Board of WPC, WHX or WPSC has in good faith determined
that the Executive is unable to substantially perform his usual and customary
duties under this Agreement for more than four (4) consecutive months or six (6)
months in any calendar year. During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to Disability prior
to the Executive's termination, the Executive shall continue to receive his full
base salary, together with all benefits provided in this Agreement.
(c) RIGHTS OF TERMINATION BY EXECUTIVE. The Executive shall
have the right, by written notice to the Company, to elect to terminate this
Agreement, in which event the Company shall pay to the Executive, within thirty
(30) days after the date of termination of the Executive's employment, the sum
of Eight Hundred Twenty-Five Thousand Dollars ($825,000) (less an amount equal
to the portion of the Twenty-Five Thousand ($25,000) Dollar per annum payment
made pursuant to Section 8 for the calendar year in which termination of
employment occurred which represents the pro-rata portion of the payment for the
balance of such calendar year, I.E., if the last date of employment is July 1,
then Twelve Thousand and Five Hundred ($12,500) Dollars shall be deducted from
the Eight Hundred Twenty-Five Thousand ($825,000) Dollar payment obligation), if
the Executive is (A) demoted (other than his removal as an officer or director
of WHX or WPC as provided in this Agreement) or (B) no longer holds the office
of Executive Vice President or Chief Financial Officer of WPSC or WPC (except as
otherwise provided in this Agreement in the case of WPC). Notwithstanding the
provisions of the previous sentence of this Section 9(c), in the event the
Executive terminates this Agreement pursuant to this Section 9(c)
-16-
<PAGE> 17
and the Executive shall have previously received or shall have the right to
receive the Additional Payment pursuant to Section 4(d) of this Agreement (but
for the passage of the thirty (30) day payment period), then the Executive shall
not receive the Eight Hundred Twenty-Five Thousand ($825,000) Dollar payment
pursuant to this Section 9(c) and shall only receive the payment and benefit set
forth in the next sentence of this Section 9(c). In the event that Executive
makes the election referred to in Section 9(c), the Executive shall be entitled
to receive from the Company the items set forth in Paragraph 9(b)(ii) through
9(b)(iv) within sixty (60) days of receipt by the Company of a written notice of
Executive's election.
10. INDEMNIFICATION. The Company shall defend and hold the Executive
harmless to the fullest extent permitted by applicable law and the Company's
By-Laws and Certificate of Incorporation in connection with any claim, action,
suit, investigation or proceeding arising out of or relating to performance by
the Executive of services for, or action of the Executive as, or arising by
reason of the fact that the Executive is or was, a Director, officer, employee
or agent of the Company or any parent, subsidiary or affiliate of the Company,
or of any other person or enterprise at the Company's request. Expenses incurred
by the Executive in defending a claim, action, suit, investigation or proceeding
shall be paid by the Company in advance of the final disposition thereof upon
the receipt by the Company of any undertaking by or on behalf of the Executive
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified hereunder. The foregoing rights are not exclusive and
do not limit any rights accruing to the Executive under any other agreement or
contract or under applicable law.
11. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
hereunder shall run in favor and be obligations of the Company, its successors
and assigns. The rights of the
-17-
<PAGE> 18
Executive hereunder shall inure to the benefit of the Executive's legal
representatives, executors, heirs and beneficiaries. Termination of Executive's
employment shall not operate to relieve him of any remaining obligations under
Section 3 hereof. The Company shall require any successor or assign (whether
direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation or otherwise) to all or a
significant portion of the assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
Regardless of whether such agreement is executed by a successor, this Agreement
shall be binding upon any successor and assign in accordance with the operation
of law and such successor and assign shall be deemed the "Company" for purposes
of this Agreement.
12. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to
this Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of
Pittsburgh, Commonwealth of Pennsylvania, by three arbitrators, one of whom
shall be appointed by the Company, one by the Executive and the third of whom
shall be appointed by the first two arbitrators. If the first two arbitrators
cannot agree on the appointment of a third arbitrator, then the third arbitrator
shall be appointed by the American Arbitration Association. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators which shall be
as provided in this Section 12. The cost of any arbitration proceeding hereunder
shall be borne equally by the Company and the Executive. The award of the
arbitrators shall be binding upon
-18-
<PAGE> 19
the parties. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of his rights under this
Agreement, and provided that the Executive substantially prevails in the
enforcement of such rights, the Company shall pay (or the Executive shall be
entitled to recover from the Company, as the case may be) the Executive's
reasonable attorneys' fees and costs and expenses in connection with the
enforcement of his rights, including the enforcement of any arbitration award,
up to $50,000 in the aggregate.
13. NOTICES. All notices, requests, demands and other communications hereunder
must be in writing and shall be deemed to have been duly given upon receipt if
delivered by hand, sent by telecopier or courier, and three (3) days after such
communication is mailed within the continental United States by first class
certified mail, return receipt requested, postage prepaid, to the other party,
in each case addressed as follows:
(a) if to WHX, WPC or WPSC, as the case may be:
WHX Corporation
110 East 59th Street
New York, New York 10022
Attn: Corporate Secretary
Wheeling-Pittsburgh Corporation
1134 Market Street
Wheeling, West Virginia 26003
Attn: Corporate Secretary
Wheeling-Pittsburgh Steel Corporation
-19-
<PAGE> 20
1134 Market Street
Wheeling, West Virginia 26003
Attn: Corporate Secretary
With a copy (which shall not constitute notice) to:
Steven Wolosky, Esquire
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
(b) if to the Executive:
Paul J. Mooney
323 Parkway Drive
Pittsburgh, Pennsylvania 15228
with a copy (which shall not constitute notice) to:
Dennis R. Bonessa, Esquire
Reed Smith Shaw & McClay
435 6th Avenue
Pittsburgh, PA 15219
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
14. SEVERABILITY. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
15. PRIOR UNDERSTANDING. This Agreement embodies the entire understanding
of the parties hereto, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof, including
without limitation the Initial Employment Agreement. No change, alteration or
modification hereof may be made except in a writing, signed
-20-
<PAGE> 21
by all parties hereto. The headings in this Agreement are for convenience and
reference only and shall not be construed as part of this Agreement or to limit
or otherwise affect the meaning hereof.
16. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be original,
but all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
17. CHOICE OF LAWS. Subject to the provisions of Paragraph 12 and without
regard to the effect of principles of conflicts of laws thereof, jurisdiction
over disputes with regard to this Agreement shall be exclusively in the courts
of the Commonwealth of Pennsylvania, and this Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
18. THIRD PARTY BENEFICIARY. The provisions of this Agreement as to the
Company shall also be binding upon and inure to the benefit of WPSC.
-21-
<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ Paul Bucha
-----------------------------------------------
Name: Paul Bucha
Title: Chairman
WHX CORPORATION
By: /s/ Howard Mileaf
-----------------------------------------------
Name: Howard Mileaf
Title: Vice President - General Counsel
WHEELING-PITTSBURGH CORPORATION
By: /s/ James Bradley
-----------------------------------------------
Name: James Bradley
Title: President
/s/ Paul J. Mooney
--------------------------------------------------
Paul J. Mooney
-22-
<PAGE> 1
EXHIBIT 21.1
WHX CORPORATION SUBSIDIARIES
- ----------------------------
CONSUMERS MINING COMPANY, a Pennsylvania corporation
CHAMPION METAL PRODUCTS, INC., a Delaware corporation
MINGO OXYGEN COMPANY, an Ohio corporation
PITTSBURGH-CANFIELD CORPORATION, a Pennsylvania corporation
UNIMAST INCORPORATED, an Ohio corporation
WHX ENTERTAINMENT CORPORATION, a Delaware corporation
WHEELING-PITTSBURGH CAPITAL CORPORATION, a Delaware corporation
WPC LAND CORPORATION, an Ohio corporation
WHEELING-PITTSBURGH CORPORATION, a Delaware corporation
WHEELING-PITTSBURGH STEEL CORPORATION, a Delaware corporation
WHEELING CONSTRUCTION PRODUCTS, INC., a Delaware corporation
WHEELING-EMPIRE COMPANY, a Delaware corporation
WP STEEL VENTURE CORPORATION, a Delaware corporation
WHEELING-PITTSBURGH FUNDING, INC., a Delaware corporation
W-P COAL COMPANY, a West Virginia corporation
CAMDEL METALS CORPORATION, a Delaware corporation
CONTINENTAL INDUSTRIES, INC. an Oklahoma corporation
ele CORPORATION, a California corporation
HANDY & HARMAN, a New York Coroporation
HANDY & HARMAN OF CANADA, LIMITED, an Ontario, Canada corporation
HANDY & HARMAN ELECTRONIC MATERIALS CORPORATION, a Florida corporation
HANDY & HARMAN (EUROPE) LIMITED, a UK corporation
HANDY & HARMAN INTERNATIONAL, LTD., a Delaware corporation
HANDY & HARMAN PERU, INC., a Delaware corporation
HANDY & HARMAN TUBE COMPANY, INC., a Delaware corporation
HANDY & HARMAN UK HOLDINGS LIMITED, a UK corporation
INDIANA TUBE CORPORATION, a Delaware corporation
INDIANA TUBE DANMARK A/S a Denmark corporation
LUCAS-MILHAUPT, INC., a Wisconsin corporation
MARYLAND SPECIALTY WIRE, INC., a Delaware corporation
MICRO-TUBE FABRICATORS, INC., a Delaware corporation
OLYMPIC MANUFACTURING GROUP, INC., a Delaware corporation
RIGBY-MARYLAND (STAINLESS), LTD, a UK corporation
SUMCO INC., an Indiana corporation
WILLING B WIRE CORPORATION, a Delaware corporation
WHX METALS CORPORATION, a Delaware corporation
WHX AVIATION CORPORATION, a Delaware corporation
GT ACQUISITION CORPORATION, a Delaware corporation
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectuses
constituting part of the Registration Statements listed below of WHX Corporation
of our reports dated February 18, 1999 and February 16, 1999, appearing on pages
23 and 51, respectively, of this Form 10-K.
ON FORM S-3:
File No. 33-54831
File No. 33-63845
ON FORM S-8:
File No. 33-54801
File No. 33-56281
File No. 333-36985
File No. 333-64217
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
March 19, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the WHX
Corporation consolidated Financial Statements as of December 31, 1998 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 16,004
<SECURITIES> 702,082
<RECEIVABLES> 97,552
<ALLOWANCES> 2,366
<INVENTORY> 467,130
<CURRENT-ASSETS> 1,293,904
<PP&E> 1,288,390
<DEPRECIATION> 469,313
<TOTAL-ASSETS> 2,712,084
<CURRENT-LIABILITIES> 885,026
<BONDS> 893,356
0
589
<COMMON> 175
<OTHER-SE> 445,748
<TOTAL-LIABILITY-AND-EQUITY> 2,712,084
<SALES> 1,645,498
<TOTAL-REVENUES> 1,645,498
<CGS> 1,376,431
<TOTAL-COSTS> 1,594,282
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 78,096
<INCOME-PRETAX> 62,816
<INCOME-TAX> 23,386
<INCOME-CONTINUING> 39,430
<DISCONTINUED> 0
<EXTRAORDINARY> 2,241
<CHANGES> 0
<NET-INCOME> 41,671
<EPS-PRIMARY> 1.16
<EPS-DILUTED> 1.11
</TABLE>
