WHX CORPORATION
AND
BANK ONE, N.A.,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 6, 2000
TO
INDENTURE
Dated as of April 7, 1998
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10 1/2% Senior Notes due 2005
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 6, 2000,
between WHX CORPORATION, a Delaware corporation (the "Company"), and BANK ONE,
N.A., a national banking association, as trustee (the "Trustee"), having its
Corporate Trust Office at 100 East Broad Street, 8th Floor, Columbus, Ohio,
43215.
RECITALS
WHEREAS, the Company and the Trustee have executed and delivered the
Indenture, dated as of April 7, 1998 (the "Original Indenture" and capitalized
terms used herein without definition have the respective meanings specified
therein), governing the terms of the Company's 10 1/2 % Senior Notes due 2005
(the "Notes"); and
WHEREAS, the Company has solicited the consent of the holders of the
Notes to certain amendments (the "Amendments") to the Original Indenture
pursuant to that certain Solicitation Statement of the Company dated September
18, 2000, as amended by Supplement No.1 thereto dated September 29, 2000 and
Supplement No.2 thereto dated October 3, 2000; and
WHEREAS, Holders representing a majority in aggregate principal amount
of the Notes have delivered their consent to the Amendments; and
WHEREAS, Section 9.02 of the Original Indenture permits the Company,
when authorized by resolution of its Board of Directors, and the Trustee, to
amend the Original Indenture with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding; and
WHEREAS, the Board of Directors of the Company has adopted such a
resolution in order to reflect the Amendments pursuant to this First
Supplemental Indenture; and
WHEREAS, the Company desires to enter into this First Supplemental
Indenture in order to amend the Original Indenture as of the Effective Time (as
defined herein);
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, it is mutually covenanted and agreed for the equal and
ratable benefit of all Holders of the Notes as follows:
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ARTICLE ONE
AMENDMENTS TO ORIGINAL INDENTURE
At the Effective Time, each of the following sections of the Original
Indenture shall be modified as follows:
A. Definitions.
(i) Section 1.01 shall be amended by adding the following definition in
its appropriate alphabetical location:
"WPC Related Persons" means, collectively, WPC and all direct and
indirect Subsidiaries of WPC.
(ii) Section 1.01 shall be amended further by modifying the definitions
of the following terms to read in their entirety as follows:
"Asset Sale" means the sale, lease, conveyance, disposition or other
transfer (a "disposition") of any properties, assets or rights (including,
without limitation, a sale and leaseback transaction or the issuance, sale or
transfer by the Company of Equity Interests of a Restricted Subsidiary) whether
in a single transaction or a series of related transactions; provided, however,
that the following transactions will be deemed not to be Asset Sales: (a) sales
of inventory (other than Owned Precious Metal Inventory) in the ordinary course
of business; (b) the sale of Owned Precious Metal Inventory in exchange for
consideration having a fair market value at least equal to that of the Owned
Precious Metal Inventory being sold; (c) the sale or transfer of Precious Metals
in connection with a Future Payables Transaction involving the same quantity of
Precious Metals so sold or transferred; (d) a disposition of assets by the
Company to a Wholly Owned Restricted Subsidiary of the Company or by a Wholly
Owned Restricted Subsidiary of the Company to the Company or to another Wholly
Owned Restricted Subsidiary of the Company; (e) a disposition of Equity
Interests by a Wholly Owned Restricted Subsidiary of the Company to the Company
or to another Wholly Owned Restricted Subsidiary of the Company; (f) a Permitted
Investment or Restricted Payment that is permitted by this Indenture; (g) the
issuance by the Company of Equity Interests; (h) the disposition of properties,
assets or rights in any fiscal year the aggregate Net Proceeds of which are less
than $1 million; (i) the sale of accounts receivable pursuant to the Receivables
Facility or any other receivable facility entered into by the Company and/or its
Restricted Subsidiaries in the ordinary course of business; and (j) any sale,
lease, conveyance, disposition or other transfer (including without limitation
by way of a sale and leaseback transaction) of all or any part of the assets,
properties or Capital Stock of any or all of the WPC Related Persons.
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"Change of Control" means any of the following: (a) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions; of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to any Person (as such term in used in Section 13(d)(3) of the
Exchange Act), (b) the adoption of a plan relating to the liquidation or
dissolution of the Company, (c) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that (i)
any "Person" or "group" (as such terms are used in Section 13(d)(3) of the
Exchange Act) other than WHX or an underwriter or group of underwriters in an
underwritten public offering becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of at least 50% of the voting
power of the outstanding voting stock of the Company, (d) the merger or
consolidation of the Company with or into another corporation with the effect
that the existing stockholders of the Company hold less than 50% of the combined
voting power of the then outstanding voting securities of the surviving
corporation of such merger or the corporation resulting from such consolidation
or (e) the first day on which more than a majority of the members of the Board
of Directors of the Company are not Continuing Directors. Notwithstanding the
foregoing, the sale, lease, transfer, conveyance or other disposition of all or
a substantial portion of the assets, properties or Capital Stock of any of the
WPC Related Persons shall not constitute a Change of Control.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company, (b) any Investment in Cash
Equivalents, U.S. Government Obligations and Triple A Rated Securities, (c) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person that is engaged in the same line of business as the Company and its
Restricted Subsidiaries were engaged in on the date of this Indenture or a line
of business or manufacturing or fabricating operation reasonably related thereto
(including any downstream steel manufacturing or processing operation or
manufacturing or fabricating operation in the construction products business) if
as a result of such Investment (i) such Person becomes a Wholly Owned Restricted
Subsidiary of the Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Restricted
Subsidiary of the Company, (d) any Investment made as a result of the receipt of
non-cash consideration from (i) an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof or (ii) a disposition of assets that does
not constitute an Asset Sale, (e) any Investment acquired solely in exchange for
Equity Interests (other than Disqualified Stock) of the Company and (f)
Investments existing as of the date of the Indenture. For purposes of this
definition, the lines of business in which the Company and its Restricted
Subsidiaries are engaged shall be determined without regard to the businesses in
which WPSC and its Subsidiaries are engaged.
"Replacement Assets" means (x) properties and assets (other than cash
or any Capital Stock or other security) that will be used in a business of the
Company and its Restricted Subsidiaries conducted on the date of this Indenture
or in a line of business or manufacturing or fabricating operation reasonably
related thereto (including any downstream steel processing or
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manufacturing operation or manufacturing or fabricating operation in the
construction products business) or (y) Capital Stock of any Person that is
engaged in a business referred to in clause (x) and that will become on the date
of the acquisition thereof a Wholly Owned Restricted Subsidiary of the Company
as a result of such acquisition. For purposes of this definition, the lines of
business in which the Company and its Restricted Subsidiaries are engaged shall
be determined without regard to the businesses in which WPSC and its
Subsidiaries are engaged.
B. Covenants.
(i) The following Section shall be amended to read in its
entirety as follows:
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
the Company) or to the direct or indirect holders of the Company's Equity
Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company); (b)
purchase, redeem or otherwise acquire or retire for value (including without
limitation, in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company (other than any such Equity
Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the
Company); (c) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value, any Indebtedness that is
subordinated in right of payment to the Notes, except a payment of interest or
principal at Stated Maturity; or (d) make any Restricted Investment (all such
payments and other actions set forth in clauses (a) through (d) above being
collectively referred to as "Restricted Payments"), unless such Restricted
Payment is made on or after October 1, 2002 and, at the time of and after giving
effect to such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Adjusted
Consolidated Leverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(iii) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture, is less than
the sum of (A) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) commencing April 1, 1998 to
the end of the Company's most recently ended fiscal quarter for which
internal financial
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statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (B) 100% of the aggregate Net Cash Proceeds
received by the Company from the issue or sale since the date of this
Indenture of Equity Interests of the Company (other than Disqualified
Stock) or of Disqualified Stock or debt securities of the Company that
have been converted into such "Equity Interests (other than any such
Equity Interests, Disqualified Stock or convertible debt securities
sold to a Restricted Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (C) to the extent that any
Restricted Investment that was made after the date of this Indenture is
sold for cash or Cash Equivalents or otherwise liquidated or repaid for
cash, Cash Equivalents, the sum of (x) the initial amount of such
Restricted Investment and (y) 50 % of the aggregate Net Proceeds
received by the Company or any Restricted Subsidiary of the Company in
excess of the initial amount of such Restricted Investment, plus (D)
$25.0 million.
The foregoing provisions will not prohibit (a) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (b) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the Net Cash Proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company) of, other Equity
Interests of the Company (other than any Disqualified Stock); provided that the
amount of any such Net Cash Proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (iii) (B) of the preceding paragraph; (c) the defeasance, redemption,
repurchase, retirement or other acquisition of subordinated Indebtedness with
the Net Cash Proceeds from an incurrence of, or in exchange for, Permitted
Refinancing Indebtedness; (d) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis; (e) so long as no Default or Event of Default shall have occurred and be
continuing, the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company held by any member of the Company's
or any of its Restricted Subsidiaries' management upon the death, disability or
termination of employment of such member of management; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $750,000 in any calendar year and $3.0 million
in the aggregate; (f) the payment by the Company or any of its Restricted
Subsidiaries of management fees to WPN or any Affiliate of WPN not to exceed
$5.5 million in any calendar year, in exchange for services provided to the
Company and its Restricted Subsidiaries by WPN or any Affiliate of WPN pursuant
to any management agreement between the Company and/or any of its Restricted
Subsidiaries and WPN and/or any of its Affiliates; (g) payments permitted under
the WHX Agreements; (h) distributions of all or any part of the assets,
properties or Capital Stock of any or all of the WPC Related Persons to any
Person other than common or preferred stockholders of WHX; and (i) the direct or
indirect purchase or other acquisition of Equity Interests of H&H pursuant to or
in connection with the Tender Offer and the Merger.
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In determining the amount of Restricted Payments permissible
under clause (iii) of the first paragraph of this covenant, amounts expended
pursuant to clauses (a) and (e) of the immediately preceding paragraph shall be
included as Restricted Payments for purposes of such clause (iii).
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would
not cause a Default. For purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to the extent
repaid in cash) in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation. All such outstanding Investments will
be deemed to constitute Investments in an amount equal to the greater of (a) the
net book value of such Investments at the time of such designation and (b) the
fair market value of such Investments at the time of such designation. Such
designation will be permitted only if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined by
the Board of Directors of the Company whose resolution with respect thereto
shall be delivered to the Trustee. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an officer's
certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Indebtedness) and that the Company will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company and its Restricted Subsidiaries may
incur Indebtedness and Restricted Subsidiaries of the Company may issue shares
of Preferred Stock if the Company's Adjusted Consolidated Leverage Ratio would
have been less than 4.5 to 1, on a pro forma basis after giving effect to the
incurrence of such Indebtedness or the issuance of such Preferred Stock, as the
case may be, and the application of the net proceeds therefrom.
Notwithstanding the foregoing, the Company and, to the extent
set forth below, its Restricted Subsidiaries may incur the following (each of
which shall be given independent effect):
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(a) Indebtedness of the Company under the Notes and this
Indenture;
(b) Permitted Working Capital Indebtedness of the Company and
its Restricted Subsidiaries;
(c) Existing Indebtedness (other than Permitted Working
Capital Indebtedness or Indebtedness under the Letter of Credit
Facility);
(d) Indebtedness of the Company and its Restricted
Subsidiaries under the Letter of Credit Facility;
(e) Capital Expenditure Indebtedness, Capital Lease
Obligations and purchase money Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$70.0 million at any time outstanding;
(f) (i) Hedging Obligations of the Company and its Restricted
Subsidiaries covering Indebtedness of the Company or such Restricted
Subsidiary (which Indebtedness is otherwise permitted to be incurred
under this covenant) to the extent the notional principal amount of any
such Hedging Obligation does not exceed the principal amount of the
Indebtedness to which such Hedging Obligation relates; or (ii)
repurchase agreements, reverse repurchase agreements or similar
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by
any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in Federal-Financial Agreements of Depository
Institutions with Securities and Others (or any successor guidelines),
as adopted by the Comptroller of the Currency;
(g) Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $45.0
million at any time outstanding;
(h) Indebtedness of the Company representing guarantees of
Indebtedness incurred by one of its Restricted Subsidiaries pursuant
to, and in compliance with, another provision of this covenant;
(i) Indebtedness of the Company or any of its Restricted
Subsidiaries representing guarantees of a portion of the Indebtedness
of Wheeling-Nisshin which is not greater than the Company's or such
Restricted Subsidiary's pro rata ownership of the outstanding Equity
Interests in Wheeling-Nisshin; provided, however, that (i) in the case
of a guarantee of any such Indebtedness by the Company, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes and (ii) at the time
of incurrence and after giving effect to the Indebtedness of
Wheeling-Nisshin which is being guaranteed, the Consolidated Interest
Coverage Ratio
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of Wheeling-Nisshin for its most recently ended four full fiscal
quarters for which internal financial statements are available would
have been at least 2.00 to 1, determined on a pro forma basis as if any
additional Indebtedness had been incurred at the beginning of such
four-quarter period;
(j) Indebtedness of the Company or its Restricted Subsidiaries
representing guarantees of Indebtedness of Wheeling-Nisshin required to
be made pursuant to the Letter of Undertaking not to exceed $10.0
million;
(k) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Wholly Owned Restricted Subsidiaries; provided, however,
that (i) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes and (ii) (A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Wholly Owned Restricted Subsidiary of the Company and (B) any sale or
other transfer of any such Indebtedness to a Person that is not either
the Company or a Wholly Owned Restricted Subsidiary of the Company
shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case
may be; and
(l) any Permitted Refinancing Indebtedness representing a
replacement, re- newel, refinancing or extension of all or any portion
of the Indebtedness permitted under the first paragraph and clauses (a)
and (c) of this covenant.
In the event that the incurrence of any Indebtedness would be
permitted by the first paragraph set forth above or one or more of the
provisions set forth in the second paragraph above, the Company may designate
(in the form of an officer's certificate delivered to the Trustee) the
particular provision of this Indenture pursuant to which it is incurring such
Indebtedness.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (a) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors of the Company set forth in an officer's
certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (b) at least 75 % of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided, however, that the amount of (i) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or such Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any
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guarantee thereof) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability and (ii) any securities, notes or
other obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
within 60 days of receipt into cash or Cash Equivalents (to the extent of the
cash or Cash Equivalents received) shall be deemed to be cash or Cash
Equivalents for purposes of this provision.
Within 90 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any such Restricted Subsidiary shall apply such Net
Proceeds (i) to reduce Indebtedness under Permitted Working Capital Indebtedness
or any other Indebtedness of a Restricted Subsidiary of the Company (and, in the
case of such Indebtedness other than Indebtedness under Permitted Working
Capital Indebtedness, to correspondingly reduce commitments with respect
thereto) (an "Indebtedness Reduction") or (ii) to purchase Notes in the open
market or in negotiated transactions ("Open Market Purchases"). To the extent
that 50% of the excess, if any, of the Net Proceeds from such Asset Sale over
any Indebtedness Reduction made with such Net Proceeds are not utilized within
90 days after receipt of such Net Proceeds to purchase Notes in Open Market
Purchases (such proceeds not so utilized being referred to herein as the
"Shortfall Proceeds") then, within 30 days thereafter, the Company shall
commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to purchase
the maximum amount of Notes that can be purchased with such Shortfall Proceeds
at a price equal to (x) 85% of the principal amount thereof plus accrued and
unpaid interest, if any, thereon, if such Asset Sale occurred prior to April 1,
2001 or (y) 95% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon, if such Asset Sale occurred on or after April 1,
2001. To the extent such Net Proceeds are not utilized as contemplated in the
preceding sentences, such Net Proceeds may, within 360 days after receipt
thereof, be utilized to acquire Replacement Assets or for Indebtedness
Reductions. Pending the final application of any such Net Proceeds, the Company
or any such Restricted Subsidiary may otherwise invest such Net Proceeds in any
manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in this paragraph will be
deemed after the expiration of the time periods set forth above to constitute
"Excess Proceeds."
Within 30 days of each date on which the aggregate amount of
Excess Proceeds exceeds $35.0 million, the Company shall commence a pro rata
Asset Sale Offer pursuant to Section 3.09 hereof to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase in accordance with the procedures set forth in Section 3.09
hereof. To the extent that the aggregate amount of Notes tendered pursuant to an
Asset Sale Offer is less than the amount that the Company is required to
repurchase, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate amount of Notes surrendered by Holders
thereof exceeds the amount that the Company is required to repurchase, the
Trustee shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed
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appropriate by the Trustee so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased). Upon completion of such offer
to purchase, the amount of Excess Proceeds shall be reset at zero.
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another
corporation, Person or entity unless (a) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, (b) the entity or Person formed
by or surviving any such consolidation or merger (if other than the Company) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee, (c) immediately after such
transaction no Default or Event of Default exists and (d) except in the case of
a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company, the Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (A) will have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Adjusted Consolidated Leverage
Ratio test set forth in the first paragraph of Section 4.09 hereof.
Notwithstanding the foregoing, the following shall be permitted: (i) the Merger
and (ii) the sale, assignment, transfer, lease, conveyance or other disposition
of all or any part of the assets, properties or Capital Stock of any or all of
the WPC Related Persons.
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest
on, or Liquidated Damages, if any, with respect to, the Notes, and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal
of or premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise;
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(c) the Company fails to comply with any of the provisions of
Sections 4.07, 4.09, 4.10, 4. 14 or Article V hereof;
(d) the Company fails to observe or perform any other
covenant, representation, warranty or other agreement in this Indenture or the
Notes for 30 days after notice to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25 % in principal amount of the Notes
then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default (i) is
caused by a failure to pay principal of or premium or interest on such
Indebtedness prior to the expiration of any grace period provided in such
Indebtedness (a "Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction against the
Company or any of its Subsidiaries and such judgment or judgments are not paid
or discharged for a period (during which execution shall not be effectively
stayed by reason of pending appeal or otherwise) of 60 days, provided that the
aggregate of all such undischarged judgments exceeds $10.0 million;
(g) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
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(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days;
provided, however, that if the entry of such order or decree is appealed and
dismissed on appeal then the Event of Default hereunder by reason of the entry
of such order or decree shall be deemed to have been cured. Notwithstanding the
foregoing, as used in clauses (e), (f), (g) and (h) of this Section 6.01 the
terms Subsidiaries, Restricted Subsidiaries and Significant Subsidiaries shall
not include any of the WPC Related Persons.
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ARTICLE TWO
MISCELLANEOUS
A. Governing Law.
The laws of the State of New York shall govern this First Supplemental
Indenture without regard to the principles of conflict of laws.
B. Counterparts.
This First Supplemental Indenture may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
C. Survival.
This First Supplemental Indenture and the Original Indenture shall
henceforth be read together. Except as expressly set forth herein, the Original
Indenture shall remain unchanged and in full force and effect in accordance with
its terms.
D. Effective Time.
For purposes of this First Supplemental Indenture, the "Effective Time"
shall mean the time as of which this First Supplemental Indenture is executed by
the Company and the Trustee.
E. Conflicting Terms.
To the extent of any inconsistency, ambiguity or conflict among the
terms of the Original Indenture and this First Supplemental Indenture, the terms
of this First Supplemental Indenture shall govern and control.
F. Acceptance of Amendments.
The Trustee accepts the supplement and amendment of the Original
Indenture effected by this First Supplemental Indenture and agrees to execute
the trust created by the Original Indenture as hereby amended, but only upon the
terms and conditions set forth in the Original Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Original Indenture as hereby amended, and, without limiting the generality of
the foregoing, the Trustee shall not be
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responsible in any manner whatsoever for or with respect to any of the recitals
or statements contained herein, all of which recitals or statements are made
solely by the Company for or with respect to (i) the validity, efficacy or
sufficiency of this First Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the Company through
corporate action or otherwise, (iii) the due execution hereof by the Company or
(iv) the consequences (direct or indirect and whether deliberate or inadvertent)
of any amendment herein provided for, and the Trustee makes no representation
with respect to any such matters.
(Remainder of this page intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be executed and delivered as of the date first above
written.
WHX CORPORATION
By: /s/ Arnold Nance
------------------------------------
Name: Arnold Nance
Title: Vice President-Finance
BANK ONE, N.A.
By: ____________________________________
Name:
Title:
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