EXECUTION COPY
WHEELING-PITTSBURGH FUNDING, INC., Transferor
WHEELING-PITTSBURGH STEEL CORPORATION, Servicer and
BANK ONE, COLUMBUS, NA, Trustee
WHEELING-PITTSBURGH TRADE RECEIVABLES MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 1994
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.................................................. 1
SECTION 1.02. Other Definitional Provisions................................ 21
ARTICLE II
TRANSFER OF RECEIVABLES
SECTION 2.01. Transfer of Receivables...................................... 23
SECTION 2.02. Acceptance by Trustee........................................ 24
SECTION 2.03. Representations and Warranties of the
Transferor Relating to the Transferor....................... 25
SECTION 2.04. Representations and Warranties of the
Transferor Relating to the Trust Assets..................... 29
SECTION 2.05. Affirmative Covenants of the Transferor...................... 33
SECTION 2.06. Negative Covenants of the Transferor......................... 36
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Acceptance of Appointment and Other
Matters Relating to the Servicer............................ 42
SECTION 3.02. Servicing Compensation; Servicer's Expenses.................. 43
SECTION 3.03. Representations and Warranties of the Servicer............... 44
SECTION 3.04. Covenants of the Servicer.................................... 47
SECTION 3.05. Reports and Records for the Trustee.......................... 51
SECTION 3.06. Annual Certificate of Servicer............................... 51
SECTION 3.07. Annual Servicing Report of Independent
Public Accountants.......................................... 52
SECTION 3.08. Tax and Usury Treatment...................................... 53
SECTION 3.09. Notices to W-P Steel......................................... 53
SECTION 3.10. Adjustments.................................................. 53
SECTION 3.11. Securities and Exchange Commission Filings................... 53
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01. Rights of Certificateholders................................. 54
SECTION 4.02. Establishment of Wheeling-Pittsburgh
Collection Accounts and Concentration
Account..................................................... 55
51685.
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TABLE OF CONTENTS (CONT'D)
PAGE
SECTION 4.03. Allocation of Collections.................................... 57
ARTICLE V
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS............................ 59
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The Certificates............................................. 60
SECTION 6.02. Authentication of Certificates............................... 60
SECTION 6.03. Registration of Transfer and Exchange of
Certificates................................................ 61
SECTION 6.04. Mutilated, Destroyed, Lost or Stolen
Certificates................................................ 63
SECTION 6.05. Persons Deemed Owners........................................ 63
SECTION 6.06. Appointment of Paying Agent.................................. 64
SECTION 6.07. Access to List of Certificateholders'
Names and Addresses......................................... 65
SECTION 6.08. Authenticating Agent......................................... 65
SECTION 6.09. New Issuances................................................ 66
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
SECTION 7.01. Obligations not Assignable................................... 69
SECTION 7.02. Limitations on Liability..................................... 69
SECTION 7.03. Indemnification of the Trustee, the Trust
and the Investor Certificateholders......................... 69
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
SECTION 8.01. Liability of the Servicer.................................... 72
SECTION 8.02. Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer......................... 72
SECTION 8.03. Limitations on Liability..................................... 72
SECTION 8.04. Servicer Indemnification..................................... 73
SECTION 8.05. The Servicer Not to Resign................................... 74
51685.
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TABLE OF CONTENTS (CONT'D)
PAGE
SECTION 8.06. Examination of Records....................................... 74
ARTICLE IX
EARLY AMORTIZATION EVENTS
SECTION 9.01. Early Amortization Events.................................... 75
SECTION 9.02. Additional Rights Upon the Occurrence
of any Early Amortization Event............................. 76
ARTICLE X
SERVICER DEFAULTS
SECTION 10.01. Servicer Defaults........................................... 77
SECTION 10.02. Trustee to Act; Appointment of Successor
Servicer................................................... 80
SECTION 10.03. Notification to Certificateholders.......................... 82
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee........................................... 83
SECTION 11.02. Certain Matters Affecting the Trustee....................... 85
SECTION 11.03. Trustee Not Liable for Recitals in
Certificates............................................... 86
SECTION 11.04. Trustee May Own Certificates................................ 86
SECTION 11.05. Compensation; Trustee's Expenses............................ 86
SECTION 11.06. Eligibility Requirements for Trustee........................ 87
SECTION 11.07. Resignation or Removal of Trustee........................... 88
SECTION 11.08. Successor Trustee........................................... 88
SECTION 11.09. Merger or Consolidation of Trustee.......................... 89
SECTION 11.10. Appointment of Co-Trustee or Separate
Trustee.................................................... 89
SECTION 11.11. Tax Returns................................................. 91
SECTION 11.12. Trustee May Enforce Claims Without
Possession of Certificates................................. 91
SECTION 11.13. Suits for Enforcement....................................... 91
SECTION 11.14. Rights of Certificateholders to Direct
Trustee.................................................... 92
SECTION 11.15. Representations and Warranties of Trustee................... 92
SECTION 11.16. Maintenance of Office or Agency............................. 93
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ARTICLE XII
TERMINATION
SECTION 12.01. Termination of Trust........................................ 94
SECTION 12.02. Final Distribution.......................................... 94
SECTION 12.03. Transferor's Termination Rights............................. 95
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Amendment; Waiver of Early Amortization
Events..................................................... 96
SECTION 13.02. Protection of Right, Title and Interest to
Trust...................................................... 97
SECTION 13.03. Limitation on Rights of Certificateholders.................. 98
SECTION 13.04. Governing Law; Jurisdiction; Consent to
Service of Process......................................... 99
SECTION 13.05. Notices; Payments...........................................100
SECTION 13.06. Rule 144A Information.......................................101
SECTION 13.07. Severability of Provisions..................................101
SECTION 13.08. Assignment..................................................101
SECTION 13.09. Certificates Nonassessable and Fully Paid...................101
SECTION 13.10. Further Assurances..........................................101
SECTION 13.11. Nonpetition Covenant........................................101
SECTION 13.12. No Waiver; Cumulative Remedies..............................102
SECTION 13.13. Counterparts................................................102
SECTION 13.14. Third-Party Beneficiaries...................................102
SECTION 13.15. Actions by Certificateholders...............................102
SECTION 13.16. Merger and Integration......................................103
SECTION 13.17. Headings....................................................103
SECTION 13.18. Construction of Agreement...................................103
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EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Annual Servicer's Certificate
Exhibit C Form of Wheeling-Pittsburgh Collection
Account Letter
Exhibit D Form of Rule 144A and Non-Rule 144A Letters
SCHEDULES
Schedule I Wheeling-Pittsburgh Collection Accounts
Schedule II Information specified in Section 2.03(n)
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POOLING AND SERVICING AGREEMENT, dated as of August 1, 1994
among WHEELING-PITTSBURGH FUNDING, INC. ("W-P Funding"), a Delaware special
purpose corporation, as Transferor (the "Transferor"), WHEELING-PITTSBURGH STEEL
CORPORATION ("W-P Steel"), a Delaware corporation, as Servicer (the "Servicer"),
and BANK ONE, COLUMBUS, NA, as Trustee (the "Trustee").
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and the
Certificateholders to the extent provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Whenever used in this Agreement,
the following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. All capitalized terms used herein but not defined shall
have the meanings ascribed to them in the related Series Supplement.
"ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"ADDITIONAL ORIGINATOR" shall have the meaning specified in
Section 2.07(a).
"AFFILIATE" shall mean, with respect to any specified Person,
any other Person controlling, controlled by or under common control with such
specified Person and, without limiting the generality of the foregoing, shall be
presumed to include (A) any Person which beneficially owns or holds 10% or more
of any class of voting securities of such designated Person or 10% or more of
the equity interest in such designated Person and (B) any Person of which such
designated Person beneficially owns or holds 10% or more of any class of voting
securities or in which such designated Person beneficially owns or holds 10% or
more of the equity interest. For the purposes of this definition, "control" when
used with respect to any specified Person shall mean the power to direct the
management and policies of such specified Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGGREGATE CERTIFICATEHOLDERS' INTEREST" shall mean the
aggregate of the Certificateholders' Interests for each Series as defined in
Section 4.01(a).
"AGREEMENT" shall mean this Pooling and Servicing Agreement,
as the same may from time to time be amended, modified or otherwise
supplemented, including, with respect to any Series or Class, the related
Supplement.
"AMORTIZATION DATE" with respect to any Series, shall have the
meaning specified in the related Supplement.
"AMORTIZATION PERIOD" shall mean, with respect to any Series,
unless otherwise specified in the related Supplement, the period beginning on
the related Amortization Date, and ending upon the payment in full to the
Investor Certificateholders of such Series of the Invested Amount with respect
to such Series, all accrued and unpaid interest thereon and all other amounts
owed to the Investor Certificateholders hereunder.
"APRIL 1 PROGRAM" shall mean a program for aging Receivables
originated by Wheeling Corrugating wherein invoices, which are dated the date of
shipment during a period of up to 120 days prior to April 1 of any year, are
identified on the computer records of the Servicer as having an invoice date of
April 1 for purposes of the payment terms of the related Receivables.
"BENEFICIARY" shall mean, as of any date of determination, any
of the then holders of the Investor Certificates and any Enhancement Provider.
"BUSINESS DAY" shall mean any day other than a Saturday or
Sunday or any other day on which national banking associations or state banking
institutions in New York, New York, Wheeling, West Virginia or the city in which
the Corporate Trust Office is located are authorized or obligated by law,
executive order or governmental decree to be closed and, with respect to
non-financial reporting requirements of the Servicer or the Transferor, any day
on which the Servicer or the Transferor is closed.
"CANADIAN RECEIVABLES" shall mean United States
dollar-denominated accounts receivable generated from sales to Canadian
Obligors.
"CERTIFICATE" shall mean any one of the Investor Certificates
or the Transferor Certificate.
"CERTIFICATE RATE" shall mean, with respect to any Series or
Class, the certificate rate specified therefor in the related Supplement.
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"CERTIFICATE REGISTER" shall have the meaning specified in
Section 6.03(a).
"CERTIFICATEHOLDER" or "HOLDER" shall mean an Investor
Certificateholder or the Person in whose name the Transferor Certificate is
registered in the Certificate Register.
"CERTIFICATEHOLDERS' INTEREST" shall have the meaning
specified in Section 4.01(a).
"CLASS" shall mean, with respect to any Series, any one of the
classes of Investor Certificates of that Series.
"CLOSING DATE" shall mean, with respect to any Series, the
Closing Date specified in the related Supplement.
"COLLECTION PERIOD" shall mean, with respect to any
Distribution Date, the calendar month (or, in the case of the calendar month in
which the date of this Agreement occurs, the portion of such calendar month
following the Closing Date) immediately preceding the calendar month in which
such Distribution Date occurs.
"COLLECTIONS" shall mean (a) all cash payments by or on behalf
of the Obligors deposited to any Wheeling-Pittsburgh Collection Account or
Concentration Account, or received by the Servicer, in respect of Receivables in
the form of cash, checks, wire transfers, electronic transfers or any other form
of cash payment, and (b) all interest and other investment earnings (net of
losses and investment expenses) on Collections (including without limitation
funds on deposit in the Reserve Accounts) as a result of the investment thereof
pursuant to Section 4.01.
"CONCENTRATION ACCOUNT" shall have the meaning speci- fied in
Section 4.02.
"CONCENTRATION ACCOUNT BANK" shall initially be Bank One,
Columbus, NA, and shall have the meaning specified in Section 4.02.
"CONCENTRATION AMOUNT" shall mean as of any date, with respect
to each Concentration Limit, the product of (a) such Concentration Limit and (b)
the aggregate amount of Eligible Receivables owned by the Trust.
"CONCENTRATION LIMIT" shall mean, with respect to the
following types of Receivables, the percentages of the aggregate amount of
Eligible Receivables owned by the Trust set forth as follows: (a) Receivables of
any single Obligor rated at least "A-1" or its equivalent by the Rating Agency,
6%; (b) Receivables of any single Obligor rated below "A-1", but at least "A-2"
or its equivalent by the Rating Agency, 5%; (c) Receivables of any
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single Obligor rated below "A-2" but at least "A-3" or its equivalent by the
Rating Agency, 4%; (d) Receivables of the five largest Obligors (by Receivables
balance) not rated or rated below investment grade on their short-term debt, in
aggregate, 15%; (e) Receivables of the two largest Obligors (by Receivables
balance) not rated on their short-term debt, each 4%; (f) Receivables of any
other single Obligor not rated on its short-term debt, 3%; (g) in addition to
the limits in clauses (a)-(f), (h),(i),(j) and (k), Receivables of Obligors
which are non-Controlled Affiliates of W-P Steel or the Transferor, 15%; (h)
Receivables the Obligors of which are state or municipal governments, in
aggregate, 1%; (i) Government Receivables, 1%; (j) Receivables included in the
April 1 Progam, 10%; and (k) in addition to the limits in clauses (a)-(j),
Receivables of Wheeling-Nisshin, Inc., 4%; PROVIDED, HOWEVER, that the
Transferor may adjust the level of any Concentration Limit (i) if such
adjustment in and of itself does not cause each Rating Agency, as confirmed in
writing by each Rating Agency, to lower or withdraw its rating of any Series of
Certificates and (ii) subject to any further conditions specified in any Series
Supplement; PROVIDED, FURTHER, that the aggregate balance of Eligible
Receivables the Obligors of which are residents of Canada or Puerto Rico shall
not exceed $2,000,000 in aggregate at any time.
"CONFIDENTIAL INFORMATION" shall mean, in relation to any
Person, any written information delivered or made available by or on behalf of
W-P Steel (or its Affiliates or subsidiaries) or the Transferor to such Person
in connection with or pursuant to this Agreement or the transactions
contemplated hereby which is proprietary in nature and clearly marked or
identified in writing as being confidential information, other than information
(i) which was publicly known, or otherwise known to such Person, at the time of
disclosure (except pursuant to disclosure in connection with this Agreement),
(ii) which subsequently becomes publicly known through no act or omission by
such Person, or (iii) which otherwise becomes known to such Person other than
through disclosure by W-P Steel or the Transferor.
"CONTRACT" shall mean an agreement between an Originator and a
Obligor, containing terms pursuant to or under which such Obligor shall be
obligated to pay from time to time for merchandise delivered or to be delivered
or services performed or to be performed.
"CONTROLLED AFFILIATE" shall mean any specified Person
controlled by or under common control with W-P Steel or the Transferor and as to
which W-P Steel or the Transferor beneficially owns or holds more than 50% of
any class of voting securities of such Person or more than 50% of the equity
interest in such Person. For the purposes of this definition, "control" when
used with respect to any specified Person shall mean the
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power to direct the management and policies of such specified Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"CORPORATE TRUST OFFICE" shall have the meaning specified in
Section 11.16.
"CREDIT POLICY AND PROCEDURES MANUAL" shall mean those credit
and collection policies and practices of W-P Steel described in the credit
policy and procedures manual in effect on the date hereof relating to
Receivables, as the same may be amended or modified from time to time in
compliance with Section 3.04(j).
"CURE FUNDS" shall have the meaning specified in the
definition of the term "Cure Period" contained in this Section 1.01.
"CURE PERIOD" shall mean the period beginning on a Pool
Non-compliance Date if the Transferor shall begin depositing Collections pro
rata (by (Floating Allocation Percentage or Fixed Allocation Percentage, as
applicable) to the Reserve Account of each Series on the day collected (all such
funds so deposited from time to time by the Transferor being "Cure Funds"), and
continuing until the earlier of (a) the date on which the Net Receivables
Balance equals at least the Required Net Receivables Balance and (b) the tenth
consecutive day following the commencement of such Pool Non-compliance Date;
PROVIDED, HOWEVER, that, with the consent of 33.33% or more of the
Certificateholders (by Invested Amount) of all outstanding Series (provided to
the Trustee on or before such tenth day), such Cure Period shall continue until
the earlier of (x) the fifth consecutive day following such tenth day or (y) the
day on which the Net Receivables Balance equals or exceeds the Required Net
Receivables Balance. Notwithstanding the foregoing, the Transferor may not
deposit any Cure Funds to the Reserve Accounts at any time if such amount,
together with the aggregate amount of Cure Funds previously deposited by the
Transferor and held in the Reserve Accounts at such time, would exceed 20% of
the Trust Invested Amount at such time, unless the Transferor has obtained the
prior written consent of the Majority in Interest.
"CUT-OFF DATE" shall mean August 17, 1994.
"DEFAULT RATIO" shall mean, for any month, the average of the
ratios for each of the three most recently ended months (each expressed as a
percentage) of (i) aggregate Receivables that were 61-90 days past due at the
end of each such month plus Receivables which were charged off as uncollectible
during the current month which were less than 91 days past due when charged
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off to (ii) aggregate Receivables that were acquired by the Trust during the
fourth month preceding such date.
"DEFAULTED RECEIVABLE" shall mean a Receivable: (i) as to
which the Obligor thereof has taken any action, or suffered any event to occur,
of the type constituting an Insolvency Event, (ii) as to which any payment, or
part thereof, remains unpaid by the Obligor thereof for 91 days or more from the
original due date for such payment specified in the relevant invoice, or (iii)
which, consistent with the Credit Policy and Procedures Manual, would be written
off as uncollectible.
"DEPOSIT DATE" shall mean each Business Day on which any
Collections are deposited in the Concentration Account.
"DETERMINATION DATE" shall mean, with respect to any
Distribution Date, the second Business Day preceding such Distribution Date.
"DETERMINATION DATE CERTIFICATE" shall mean, with respect to
any Determination Date and any Series, a report prepared by a Servicing Officer
for such Determination Date as of the end of the immediately preceding month in
substantially the form set forth in the related Supplement.
"DILUTED RECEIVABLE" shall mean, that portion of any Eligible
Receivable which is either (a) reduced or cancelled as a result of (i) any
failure by any Originator to deliver any merchandise or provide any services or
otherwise to perform under the underlying Contract or invoice, (ii) any change
in the terms of, or cancellation of, a Contract or invoice or any other
adjustment by W-P Steel which reduces the amount payable by the Obligor on the
related Receivable or (iii) any setoff in respect of any claim by an Obligor on
the related Receivable or (b) subject to any specific dispute, offset,
counterclaim or defense whatsoever asserted (except the discharge in bankruptcy
of the Obligor thereof); provided, that Diluted Receivables are calculated
assuming that all chargebacks are resolved in the Obligor's favor and do not
include contractual adjustments to the amount payable by an Obligor that are
eliminated from the Receivables balance sold to the Trust through a reduction in
the Purchase Price for the related Receivable.
"DILUTION RATIO" shall mean as of any date, the average of the
ratios for each of the two most recently ended months (expressed as a
percentage) of (i) the aggregate balance of Diluted Receivables at the end of
such month to (ii) the aggregate balance of all Receivables acquired by the
Trust during the month second preceding such date of calculation.
"DILUTION VOLATILITY FACTOR" shall mean as of any date a
percentage equal to the product of (a) the amount by which (i)
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the highest Dilution Ratio during the most recently ended twelve-month period
exceeds (ii) the average of the Dilution Ratios during such twelve-month period
and (b)(i) the highest Dilution Ratio during such twelve-month period divided by
(ii) the average of the Dilution Ratios during such twelve month period.
"DISCOUNT AMOUNT" shall mean, with respect to any Series, the
amount set forth in the related Supplement.
"DISTRIBUTION DATE" shall mean, with respect to any Collection
Period, the fifteenth day of the calendar month immediately following such
Collection Period, or, if such day is not a Business Day, the next succeeding
Business Day or such other day as set forth in the Supplement for a Series.
"DUFF & ▇▇▇▇▇▇" shall mean Duff & ▇▇▇▇▇▇ Credit Rating Co. or
its successor.
"EARLY AMORTIZATION EVENT" shall have the meaning specified in
Section 9.01 and with respect to any Series shall also mean any Additional Early
Amortization Event specified in the related Supplement.
"EARLY AMORTIZATION PERIOD" shall mean, with respect to any
Series, unless otherwise specified in the related Supplement, the period
beginning at the close of business on the Business Day immediately preceding the
day on which the Early Amortization Event is deemed to have occurred, and in
each case ending upon the earlier to occur of (a) the payment in full to the
Investor Certificateholders of such Series of the Invested Amount with respect
to such Series, (b) the Termination Date with respect to such Series and (c) if
such Early Amortization Period has resulted from the occurrence of an Early
Amortization Event described in Section 9.01(i), the end of the first Collection
Period during which an Early Amortization Event would no longer be deemed to
exist pursuant to Section 9.01(i), so long as no other Early Amortization Event
with respect to such Series shall have occurred and the scheduled termination of
the Revolving Period with respect to such Series shall not have occurred.
"ELIGIBLE INSTITUTION" shall mean a depository institution
organized under the laws of the United States of America or any one of the
states thereof, including the District of Columbia (or any domestic branch of a
foreign bank), which at all times is a member of the FDIC, has a combined
capital and surplus of at least $100,000,000 and satisfies two (2) of the
following three (3) criteria: (i) has (A) a long-term unsecured debt rating of
at least A3 or better by ▇▇▇▇▇'▇ or (B) a certificate of deposit rating or
short-term unsecured debt rating of P-l by ▇▇▇▇▇'▇, (ii) has (A) a long-term
unsecured debt rating of at least A- or better by S&P or (B) a certificate of
deposit rating or short-term unsecured debt rating of A-l by S&P and (iii) has
(A) a
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long-term unsecured debt rating of at least A- or better by Duff & ▇▇▇▇▇▇ or (B)
a certificate of deposit rating or short-term unsecured debt rating of Duff-1 by
Duff & ▇▇▇▇▇▇.
"ELIGIBLE INVESTMENTS" shall mean book-entry securities
entered on the books of the registrar of such security and held in the name or
on behalf of the Trustee, negotiable instruments or securities represented by
instruments in bearer or registered form (registered in the name of the Trustee
or its nominee) which evidence:
(a) direct obligations of, or obligations fully guaranteed as
to timely payment by, the United States of America or any agency;
(b) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 270 days) of depository
institutions or trust companies incorporated under the laws of the
United States of America or any state thereof (or domestic branches of
foreign banks), subject to supervision and examination by Federal or
state banking or depository institution authorities, and having, at the
time of the Trust's investment or contractual commitment to invest
therein, the highest short-term unsecured debt rating from S&P and
▇▇▇▇▇'▇;
(c) commercial paper (having original maturities of no more
than 270 days) having, at the time of the Trust's investment or
contractual commitment to invest therein, the highest short-term rating
from S&P and ▇▇▇▇▇'▇;
(d) investments in no load money market funds having a rating
from each rating agency rating such fund in its highest investment
category;
(e) notes or bankers' acceptances (having original maturities
of no more than 270 days) issued by any depository institution or trust
company referred to in clause (b) above; or
(f) The One Group Family of Mutual Funds of Bank One,
Columbus, NA, so long as it shall be rated by S&P and Moody's as either
AAAm, Aaa or Duff-1+, as an eligible investment for AAA rated
transactions, or in the highest short term rating assigned by each such
rating agency.
"ELIGIBLE RECEIVABLE" shall mean each Receivable or portion
thereof:
(i) as to which, at the time of the Transfer of such
Receivable to the Trust, the Transferor or the Trust will have good and
marketable title thereto free and clear
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from Liens except as created hereunder, and which has been the subject
of either a valid transfer and assignment from the Transferor to the
Trust of all the Transferor's right, title and interest therein (and in
the proceeds thereof), or the grant of a first priority perfected
"security interest" (within the meaning of the UCC of the jurisdiction
the law of which governs the perfection of the interest in such
Receivable created hereunder) therein (and in the proceeds thereof);
(ii) which is not a Defaulted Receivable or a Diluted
Receivable;
(iii) which arose in the ordinary course of business of W-P
Steel or any of the Originators and is an account receivable
representing all or part of the sales price of merchandise, or services
within the meaning of Section 3(c)(5) of the Investment Company Act,
the Obligor of which is primarily liable with respect thereto;
(iv) which is an "account" (within the meaning of Section
9-106 of the UCC of the jurisdiction the law of which governs the
perfection of the interest in such Receivable created hereunder);
(v) which is denominated and payable only in United States
dollars in the United States;
(vi) the Obligor of which is a United States, Canadian or
Puerto Rican resident;
(vii) which will at all times be the legal and assignable
payment obligation of the Obligor of such Receivable, enforceable
against such Obligor in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally, and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(viii) which was created in compliance with, and which, at
the time of the Transfer of such Receivable to the Trust, does not
contravene in any material respect, any applicable Requirements of Law,
and the Obligor on which is not in violation of any such Requirements
of Law in any material respect with respect to such Receivable;
(ix) which satisfies in all material respects all material
applicable requirements of the Credit Policy and Procedures Manual;
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(x) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with,
any Governmental Authority required to be obtained, effected or given
in connection with the creation of such Receivable have been duly
obtained, effected or given and are in full force and effect;
(xi) which is not subject to any specific waiver or
modification except for a Receivable which is subject to a waiver or
modification as permitted in accordance with the Credit Policy and
Procedures Manual and which waiver or modification is reflected in the
Servicer's records and computer files relating thereto;
(xii) which is not subject to any enforceable provision
prohibiting the transfer or assignment by the Originator or W-P Steel
of such payment obligation;
(xiii) the payment terms of which conform in all material
respects to the provisions of the Credit Policy and Procedures Manual
of W-P Steel; and
(xiv) the Obligor of which is not a Controlled Affiliate of
W-P Steel or the Transferor;
provided, that Receivables as to which Wheeling-Nisshin, Inc. is the Obligor,
which satisfy the other conditions of this definition, shall be Eligible
Receivables.
"ELIGIBLE SERVICER" shall mean W-P Steel, the Trustee or an
entity which, at the time of its appointment as Servicer, (a) is servicing a
portfolio of trade receivables, (b) is legally qualified and has the capacity to
service the Receivables and (c) has demonstrated the ability to professionally
and competently service a portfolio of similar trade receivables with high
standards of skill and care.
"ENHANCEMENT" shall mean the rights and benefits provided to
the Investor Certificateholders of any Series or Class pursuant to any letter of
credit, surety bond, cash collateral account, spread account, guaranteed rate
agreement, maturity liquidity facility, tax protection agreement, interest rate
swap agreement or other similar arrangement. The subordination of any Series or
Class to any other Series or Class or of the Trans- feror's Interest to any
Series or Class shall be deemed to be an Enhancement.
"ENHANCEMENT AGREEMENT" shall mean any agreement, instrument
or document governing the terms of any Enhancement of any Series or pursuant to
which any Enhancement of any Series is issued or outstanding.
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"ENHANCEMENT PROVIDER" shall mean the Person providing any
Enhancement, other than any Certificateholders (including any holder of the
Transferor Certificate) the Certificates of which are subordinated to any other
Series or Class.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"EXPECTED FINAL PAYMENT DATE" with respect to any Series shall
have the meaning specified in the related Supplement.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"FIXED ALLOCATION PERCENTAGE" with respect to each Series,
shall have the meaning specified in the related Supplement.
"FLOATING ALLOCATION PERCENTAGE" with respect to each Series,
shall have the meaning specified in the related Supplement; PROVIDED, HOWEVER,
that the aggregate of the Floating Allocation Percentages with respect to all
outstanding Series shall not exceed 100%.
"GOVERNMENT RECEIVABLE" shall mean a Receivable with respect
to which the Obligor is the federal government of the United States or a
political, administrative or regulatory subdivision thereof.
"GOVERNMENTAL AUTHORITY" shall mean any country or nation, any
political subdivision, state or municipality of such country or nation, and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government of any country or nation or political
subdivision thereof.
"INDEMNIFIED AMOUNTS" shall have the meaning specified in
Section 7.03.
"INDEMNIFIED PARTY" shall have the meaning specified in
Section 7.03.
"INDEPENDENT PUBLIC ACCOUNTANTS" means any of (a) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co., (b) Deloitte & Touche, (c) Coopers & ▇▇▇▇▇▇▇, (d) Ernst & Young,
(e) KPMG Peat Marwick and (f) Price Waterhouse or any of their successors so
long as such successor is one of the six largest national accounting firms,
provided, that such firm is independent with respect to the Servicer within the
meaning of the Act.
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"INITIAL INVESTED AMOUNT" shall mean, with respect to any
Series and for any date, an amount equal to the initial invested amount
specified in the related Supplement.
"INSOLVENCY EVENT" shall mean, with respect to a specified
Person, (a) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person or any substantial part
of its property in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointing of
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
ordering of the winding-up or liquidation of such Person's business, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) the commencement by such Person or by a Controlled
Affiliate of such Person of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
such Person to the entry of an order for relief in an involuntary case under any
such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the benefit of
creditors, or the failure by such Person generally to pay its debts as such
debts become due or the admission by such Person in writing (as to which the
Trustee shall have written notice) of its inability to pay its debts generally
as they become due.
"INTEREST PERIOD" shall mean, unless otherwise specified in
the Supplement relating to any Series, with respect to any Distribution Date
except for the initial Distribution Date, the period from and including the
preceding Distribution Date to but excluding such Distribution Date, and, in the
case of the initial Distribution Date, the period from and including the Closing
Date to but excluding such initial Distribution Date.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended from time to time.
"INVESTED AMOUNT" shall mean, with respect to any Series and
for any date, an amount equal to the invested amount specified in the related
Supplement.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act
of 1940, as amended from time to time.
"INVESTOR CERTIFICATE" shall mean any one of the certificates
executed by the Transferor and authenticated by or on behalf of the Trustee, in
substantially the form attached to the related Supplement, other than the
Transferor Certificate.
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"INVESTOR CERTIFICATEHOLDER" shall mean the Person in whose
name an Investor Certificate is registered in the Certificate Register.
"INVESTOR COLLECTIONS" with respect to each Series, shall have
the meaning specified in the related Supplement.
"LIEN" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other), preference,
participation interest, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever resulting in an encumbrance against
real or personal property of a Person, including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction to
evidence any of the foregoing.
"LOSS AND DILUTION RESERVE" shall mean, with respect to any
Series, the amount set forth in the related Supplement.
"LOSS TO LIQUIDATION RATIO" shall mean as to any date the
ratio (expressed as a percentage) calculated by dividing (a) the aggregate
Outstanding Balance of all Receivables written off as uncollectible in
accordance with the Credit Policy and Procedures Manual by W-P Steel during the
twelve-month period most recently ended by (b) the aggregate amount of
Collections during such twelve-month period.
"MAJORITY IN INTEREST" shall mean with respect to each Series
the Holders of Certificates evidencing 51% or more of the aggregate
Certificateholders' Interest in such outstanding Series.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or its
successor.
"NET RECEIVABLES BALANCE" shall mean at any time the excess of
(a) the aggregate Outstanding Balance of Receivables over (b) the sum of (i) the
aggregate Outstanding Balance of Receivables that are not Eligible Receivables
at such time plus (ii) the Overconcentration Amount at such time, plus (iii) the
aggregate amount of Collections that have not been applied to the corresponding
Receivables on the records of the Servicer.
"NOTICES" shall have the meaning specified in Section
13.05(a).
"OBLIGOR" shall mean each Person who is obligated to pay for
goods or services provided by W-P Steel or any of the
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other Originators which gave rise to a Receivable, including any guarantor of
such Person's obligations.
"OFFICER'S CERTIFICATE" shall mean, unless otherwise specified
in this Agreement, a certificate signed by the President, any Vice President,
the Chief Financial Officer, the Treasurer or Controller of the Transferor, or
of the Servicer, or any Successor Servicer, as the case may be, and delivered to
the Trustee.
"OPINION OF COUNSEL" shall mean a written opinion of counsel,
who may be counsel for, or an employee of, the Person providing the opinion and
who shall be reasonably acceptable to the Trustee.
"ORIGINATORS" shall mean Wheeling-Pittsburgh Steel
Corporation, Pittsburgh-▇▇▇▇▇▇▇▇ Corporation, Wheeling Construction Products,
Inc. and any other Person designated from time to time as an Originator pursuant
to the terms of Section 2.07 and the Receivables Purchase Agreement.
"OUTSTANDING BALANCE" of any Receivable at any time shall mean
the then outstanding principal balance thereof.
"OVERCONCENTRATION AMOUNT" shall mean at any time the sum of
the amounts, if any, by which the aggregate Outstanding Balance of Eligible
Receivables of the types specified in clauses (a) through (j) of the definition
of Concentration Limit owned by the Trust exceeds the aggregate of the
respective Concentration Amounts.
"PARTIAL AMORTIZATION PERIOD" shall mean, unless the
Transferor shall have initiated a Cure Period or an Early Amortization Period or
the Amortization Period shall have commenced prior thereto, the period beginning
on a Pool Noncompliance Date and continuing each day thereafter until the
earlier of (a) the date on which the Net Receivables Balance shall be equal to
or greater than the Required Net Receivables Balance and (b) the tenth
consecutive day following such Pool Non-compliance Date; PROVIDED, HOWEVER,
that, with the consent of 33.33% or more of the Certificateholders (by Invested
Amount) of all outstanding Series (provided to the Trustee on or before such
tenth day), such Partial Amortization Period shall continue until the earlier of
(x) the fifth consecutive day following such tenth day and (y) the day on which
the Net Receivables Balance equals or exceeds the Required Net Receivables
Balance.
"PAYING AGENT" shall mean any paying agent appointed pursuant
to Section 6.06.
"PERSON" shall mean any individual, corporation, part-
nership, joint venture, association, joint-stock company, trust,
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unincorporated organization, Governmental Authority or any other entity of
similar nature.
"POOL NON-COMPLIANCE DATE" shall mean any day on which the Net
Receivables Balance falls below the Required Net Receivables Balance.
"PRINCIPAL TERMS" shall mean, with respect to any Series: (a)
the name or designation; (b) the initial principal amount (or method for
calculating such amount); (c) the Certificate Rate (or method for the
determination thereof); (d) the payment date or dates and the date or dates from
which interest shall accrue; (e) the method for allocating collections to
Investor Certificateholders; (f) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts; (g) the issuer and
terms of any form of Enhancement with respect thereto; (h) the terms on which
the Investor Certificates of such Series may be exchanged for Investor
Certificates of another Series, repurchased or redeemed by the Transferor or
remarketed to other investors; (i) the number of Classes of Investor
Certificates of such Series and, if more than one Class, the rights and
priorities of each such Class; (j) the Series Servicing Fee and the Series
Trustee's Fee; (k) the Amortization Date and the Termination Date; and (l) any
other terms of such Series.
"PURCHASE PRICE" shall have the meaning specified in the
Receivables Purchase Agreement.
"RATING AGENCY" shall mean each such nationally recognized
rating agency which, at the request of the Transferor, has rated any Series of
Certificates.
"RATING AGENCY CONDITION" shall mean, with respect to any
action, that each Rating Agency, upon the written request of the Transferor, the
Servicer or the Trustee, shall have notified such parties in writing that such
action in and of itself will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class with respect to which it is a Rating
Agency.
"RECEIVABLE" shall mean an account receivable shown on the
records of any Originator as of the Cut-Off Date, and from time to time
thereafter, arising from the delivery of merchandise or providing of services by
any Originator in the ordinary course of business of such Originator, including
without limitation, all monies due or to become due and all Collections and
other amounts received from time to time with respect to such Receivable and all
proceeds (including, without limitation, "proceeds" as defined in the UCC of the
jurisdiction the law of which governs the perfection of the interest on the
Receivables transferred hereunder) thereof and "Receivables" shall mean all such
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Receivables; PROVIDED, HOWEVER, that the term "Receivable" shall not include (a)
as of the Cut-Off Date and any subsequent date of Transfer to the Trust,
accounts receivable which do not satisfy the conditions of clauses (v) and (vi)
of the definition of Eligible Receivable, (b) Receivables as to which the
Obligor is a joint venture or partnership relating to the production of hot
rolled products between W-P Steel and ISPAT Mexicana, S.A. DE C.V. or its
Affiliates and (c) Receivables as to which the Obligor is a wholly-owned
subsidiary of W-P Steel or the Transferor.
"RECEIVABLES PURCHASE AGREEMENT" shall mean the agreement
between W-P Steel and the Transferor, dated as of the date hereof, governing the
terms and conditions upon which the Transferor shall have acquired the
Receivables transferred to the Trust on the Closing Date and all Receivables
transferred to the Trust from time to time thereafter, as the same may from time
to time be amended, modified or otherwise supplemented (a) with the consent of
the Majority in Interest of each adversely affected Series if such amendment,
modification or supplement would materially and adversely affect the interests
of such Series or (b) without the consent of any of the Investor
Certificateholders as evidenced by an Opinion of Counsel that such amendment,
modification or supplement will not materially adversely affect the interests of
any Certificateholders.
"RECONVEYED RECEIVABLE" shall have the meaning specified in
Section 2.04.
"RECORD DATE" shall mean, with respect to any Distribution
Date, the last day of the preceding calendar month.
"REMOVED ORIGINATOR" shall have the meaning specified in
Section 2.07(b).
"REQUIRED NET RECEIVABLES BALANCE" shall mean as of any day of
determination, the sum of (i) the aggregate of the Loss and Dilution Reserves
for all outstanding Series, (ii) the aggregate of the Yield Reserves for all
outstanding Series and (iii) the Trust Invested Amount (computed as if reduced
by (A) the amount of Cure Funds held in the Reserve Account for each Series and
(B) the cumulative amount of funds held at such time in the Concentration
Account allocated to the Trust Partial Amortization Amount.
"REQUIREMENTS OF LAW" shall mean any law, treaty, rule or
regulation, or final determination of an arbitrator or Governmental Authority,
and, when used with respect to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person.
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"RESERVE ACCOUNT" with respect to each Series shall have the
meaning specified in the related Supplement and "Reserve Accounts" shall refer
to all the Reserve Accounts established for outstanding Series in accordance
with the terms of the related Supplements.
"RESPONSIBLE OFFICER" shall mean, (i) when used with respect
to the Trustee, any officer within the corporate trust department of the Trustee
including any vice president, assistant vice president, secretary, assistant
secretary, treasurer, assistant treasurer, trust officer or any other officer of
the Trustee who customarily performs functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such officer's knowledge of and
familiarity with the particular subject and (ii) when used with respect to the
Transferor, any of the President, Chief Executive Officer, Treasurer, Executive
Vice President-Finance and Chief Financial Officer, Executive Vice
President-Manufacturing and Executive Vice President-Commercial and Chief
Operating Officer or when used with respect to the Servicer, any of the
President, Chief Financial Officer or Treasurer.
"REVOLVING PERIOD" shall mean, with respect to any Series, the
period specified in the related Supplement.
"S&P" shall mean Standard & Poor's Corporation or Standard &
Poor's Ratings Group, as applicable, or the successor of either of them.
"SERIES" shall mean any series of Investor Certificates.
"SERIES ACCOUNT" shall mean any deposit, trust, escrow,
reserve or similar account maintained for the benefit of the Investor
Certificateholders or any Series or Class, as specified in any Supplement.
"SERIES ALLOCATION PERCENTAGE" shall mean, with respect to any
Series, the percentage equivalent of a fraction, the numerator of which is the
sum of (a) the Invested Amount for such Series (computed as if reduced by (A)
the amount of Cure Funds held in the Reserve Account for such Series and (B) the
cumulative amount of funds held at such time in the Concentration Account
allocated to the portion of the Trust Partial Amortization Amount allocable to
such Series) PLUS (b) the Yield Reserve for such Series, PLUS (c) the Loss and
Dilution Reserve for such Series, and the denominator of which is the aggregate
of the amounts specified in clauses (a), (b) and (c) for all outstanding Series.
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"SERIES CUT-OFF DATE" shall mean, with respect to any Series,
the date specified as such in the related Supplement.
"SERIES ISSUANCE DATE" shall mean, with respect to any Series,
the date on which the Investor Certificates of such Series are to be originally
issued in accordance with Section 6.09 and the related Supplement.
"SERIES SERVICING FEE" shall mean, with respect to any Series,
the amount specified in the applicable Supplement.
"SERIES TRUSTEE'S FEE" shall mean, with respect to any Series,
the amount specified in the applicable Supplement.
"SERVICE TRANSFER" shall have the meaning specified in Section
10.01.
"SERVICER" initially shall mean W-P Steel in its capacity as
Servicer pursuant to this Agreement, and after any Service Transfer shall mean
the Successor Servicer.
"SERVICER DEFAULT" shall have the meaning specified in Section
10.01.
"SERVICING FEE" shall have the meaning specified in Section
3.02(a).
"SERVICING OFFICER" shall mean any officer or other employee
of the Servicer or other agent of the Servicer who in any case is involved in,
or responsible for, the administration and servicing of the Receivables and
whose name appears on a list of servicing officers furnished to the Trustee by
the Servicer, as such list may from time to time be amended.
"SUCCESSOR SERVICER" shall have the meaning specified in
Section 10.02(a).
"SUPPLEMENT" shall mean, with respect to any Series, a
supplement to this Agreement, executed and delivered in connection with the
original issuance of the Investor Certificates of such Series pursuant to
Article VI, and all amendments, modifications or supplements to this Agreement.
"SUPPLEMENTAL CERTIFICATE" shall have the meaning specified in
Section 6.09(c).
"TAX OPINION" shall mean, with respect to any action, an
Opinion of Counsel who is not an employee of the Servicer or any Affiliate of
the Servicer to the effect that, for federal and West Virginia (and any other
State where substantial servicing activities in respect of Receivables are
conducted by the Transferor or the Servicer if there is a substantial change
from
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present servicing activities) state income and franchise tax purposes, (a) such
action will not adversely affect the characterization of the Investor
Certificates of any outstanding Series or Class as debt, (b) such action will
not cause a taxable event to any Investor Certificateholder, (c) following such
action the Trust should not be treated as an association (or publicly traded
partnership) taxable as a corporation, (d) in the case of the original issuance
of Certificates, the Investor Certificates should properly be characterized as
debt for tax purposes, or if not debt, as an interest in a partnership and not
in an association taxable as a corporation and (e) in the case of Section
6.09(b), the Investor Certificates of the new Series will be characterized as
debt.
"TERMINATION DATE" shall mean, with respect to any Series, the
termination date specified in the related Supplement.
"TERMINATION NOTICE" shall have the meaning specified in
Section 10.01.
"TRANSFER" shall have the meanings specified in Section 2.01,
it being understood that the date of Transfer of any Receivable or other Trust
Asset shall be the date on which such Receivable or other Trust Asset shall be
created or otherwise arise and, in the case of such Receivable, be acquired by
the Transferor under the Receivables Purchase Agreement.
"TRANSFER AGENT AND REGISTRAR" shall have the meaning
specified in Section 6.03.
"TRANSFEROR" shall mean Wheeling-Pittsburgh Funding, Inc., a
Delaware special purpose corporation.
"TRANSFEROR CERTIFICATE" shall mean the certificate executed
by the Transferor and authenticated by or on behalf of the Trustee, in
substantially the form of Exhibit A hereto.
"TRANSFEROR COLLECTIONS" shall mean, with respect to any date,
that portion of the Collections deposited to the Concentration Account equal to
the product of (i) the Transferor Percentage on such date times (ii) the
aggregate amount of such Collections.
"TRANSFEROR INTEREST" shall have the meaning specified in
Section 4.01(a).
"TRANSFEROR PERCENTAGE" shall mean at any time 100% minus the
aggregate of the Floating Allocation Percentages or Fixed Allocation
Percentages, as applicable, of all outstanding Series at such time.
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"TRANSFEROR RECEIVABLE" shall mean a Receivable acquired by
the Transferor pursuant to the Receivables Purchase Agreement.
"TRANSFEROR'S ACCOUNT" shall mean the special account (account
number ▇▇▇▇▇▇▇), under the dominion and control of the Transferor, for deposits
by the Servicer pursuant to the applicable Supplement, maintained at the office
of the Trustee in Columbus, Ohio, or such other account at such other bank,
under the dominion and control of the Transferor, as Transferor may designate
for such purpose from time to time.
"TRUST" shall mean the Wheeling-Pittsburgh Trade Receivables
Master Trust created by this Agreement.
"TRUST ASSETS" shall have the meaning specified in Section
2.01.
"TRUST INVESTED AMOUNT" shall mean at any time the sum of the
Invested Amounts for all outstanding Series at such time.
"TRUST PARTIAL AMORTIZATION AMOUNT" shall mean, with respect
to any date of determination during a Partial Amortization Period the amount by
which the Net Receivables Balance is less than the Required Net Receivables
Balance.
"TRUSTEE" shall mean Bank One, Columbus, NA, in its capacity
as trustee on behalf of the Trust, or its successor in interest, or any
successor trustee appointed as herein provided.
"TRUSTEE'S ACCOUNT" with respect to each Series, shall have
the meaning specified in the related Supplement.
"TRUSTEE'S FEE" shall have the meaning specified in Section
11.05.
"TURNOVER RATE" shall mean for any date the average of the
percentage equivalent of a fraction for each of the three most recently ended
months the numerator of which is the Net Receivables Balance as of the last day
of each such month and the denominator of which is the aggregate balance of
Receivables transferred to the Trust during each such month; PROVIDED, HOWEVER,
that with respect to any such months, or portion thereof, occurring prior to the
Closing Date, the denominator of such fraction shall be the aggregate balance of
Receivables originated by the Originators during such month or portion thereof.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any applicable or specified jurisdiction.
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"UNDIVIDED FRACTIONAL INTEREST" with respect to each Series
shall have the meaning specified in the related Supplement.
"WEIGHTED AVERAGE TERM" shall mean, as of any date, a fraction
the numerator of which is the sum of the product for each Receivable sold to the
Trust during the preceding month of (i) the outstanding balance of such
Receivable (at the time such Receivable is transferred to the Trust) TIMES (ii)
the payment term (in days) for each such Receivable, and the denominator of
which is the aggregate outstanding balance of such Receivables (at the time such
Receivable is transferred to the Trust); PROVIDED, HOWEVER, (x) that if more
than 10% of the aggregate principal balance of Receivables transferred to the
Trust during such preceding month are not Eligible Receivables (at the time such
Receivables were transferred to the Trust), then the "Weighted Average Term"
shall be recalculated on such date excluding the balances of all such
non-Eligible Receivables transferred to the Trust during the preceding month;
(y) that for purposes of clause (ii) above, the "term" of all Receivables in the
April 1 Program shall be deemed to begin on the invoice date for each such
Receivable which is not April 1st; and (z) that the amount in clauses (i) and
(x) shall not include the balances of Receivables as to which Wheeling-Nisshin,
Inc. is the Obligor.
"WHEELING CORRUGATING" shall mean Wheeling Corrugating, an
operating division of W-P Steel.
"WHEELING-PITTSBURGH COLLECTION ACCOUNT" shall have the
meaning specified in Section 4.02.
"WHEELING-PITTSBURGH COLLECTION ACCOUNT BANK" shall have the
meaning specified in Section 4.02.
"WHEELING-PITTSBURGH COLLECTION ACCOUNT LETTER" shall have the
meaning specified in Section 4.02.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. (a) All terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not completely defined, shall have the respective meanings given to them
under generally accepted accounting principles or regulatory accounting
principles, as applicable and in effect from time to time. To the extent that
the definitions of accounting terms herein are inconsistent with the meanings of
such terms under generally
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accepted accounting principles or regulatory accounting principles, the
definitions contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
Schedule and Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" means "including without limitation".
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ARTICLE II
TRANSFER OF RECEIVABLES
SECTION 2.01. TRANSFER OF RECEIVABLES. (a) By execution of
this Agreement, the Transferor does hereby transfer, assign, set-over and
otherwise convey without recourse, except as expressly provided herein (the
making of such transfer, assignment, set-over and conveyance being a "Transfer",
and so to transfer, assign, set-over and otherwise convey being to "Transfer")
to the Trust, for the benefit of the Certificate- holders:
(i) all of the Transferor's right, title and interest in, to
and under all Transferor Receivables existing at the close of business on the
Cut-Off Date and thereafter created from time to time, and conveyed to the
Transferor under the Receivables Purchase Agreement from time to time, until the
termination of the Revolving Period of the last outstanding Series, and all
monies due or to become due and all Collections and other amounts received from
time to time with respect to such Transferor Receivables and all proceeds
(including, without limitation, "proceeds" as defined in the UCC of the
jurisdiction the law of which governs the perfection of the interest in the
Transferor Receivables transferred hereunder) thereof; and
(ii) all of the Transferor's rights, remedies, powers and
privileges under the Receivables Purchase Agreement.
Such property described in the preceding sentence, together with all monies from
time to time on deposit in, and all Eligible Investments and other securities,
instruments and other investments purchased from funds on deposit in, the
Concentration Account and any Series Account, and any Enhancements shall
constitute the assets of the Trust (collectively the "Trust Assets").
The foregoing Transfer does not constitute and is not intended
to result in an assumption by the Trust, the Trustee or any Certificateholder of
any obligation of the Servicer, W-P Steel, the Transferor or any other Person in
connection with the Receivables or under the Receivables Purchase Agreement or
under any agreement or instrument relating thereto, including, without
limitation, any obligation to any Obligor. The foregoing Transfer to the Trust
shall be made to the Trustee, on behalf of the Trust, and each reference in this
Agreement to such Transfer shall be construed accordingly.
The Transferor agrees to record and file from time to time, at
its own expense, financing statements and other documents (and amendments
thereto, assignments thereof and continuation statements, when applicable) with
respect to the
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Receivables and the other Trust Assets now existing and hereafter created
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection of, the
Transfers of the Receivables and the other Trust Assets to the Trust, and to
deliver a file-stamped copy of such a financing statement or other document or
other evidence of such filing to the Trustee on or prior to the Closing Date.
The Trustee shall be under no obligation whatsoever to file such financing
statements, documents, amendments, assignments or continuation statements, or to
make any other filing under the UCC in connection with such Transfer.
W-P Steel and the Transferor further agree, at their own
expense, on or prior to the Closing Date to ▇▇▇▇ their computer records in a
manner reasonably calculated to indicate that the Receivables have been
conveyed, in the case of W-P Steel, to the Transferor in accordance with the
Receivables Purchase Agreement and, in the case of the Transferor, to the Trust
in accordance with this Agreement for the benefit of the Certificateholders.
(b) The Trustee hereby agrees not to disclose to any Person
any information delivered to the Trustee from time to time with respect to the
Receivables or any Obligor except (i) to a Successor Servicer or as required by
a Requirement of Law applicable to the Trustee, (ii) as required in the
performance of the Trustee's duties hereunder, (iii) as required in enforcing
the rights of the Certificateholders hereunder or (iv) as provided in any
Supplement. The Trustee agrees to take such measures as shall be reasonably
requested by the Transferor to protect and maintain the security and
confidentiality of such information and, in connection therewith, will allow the
Transferor to inspect the Trustee's security and confidentiality arrangements
from time to time during normal business hours. The Trustee shall use its best
efforts to provide the Transferor written notice at least five Business Days
prior to any disclosure pursuant to this Section and in any event will provide
written notice whenever disclosure is made.
SECTION 2.02. ACCEPTANCE BY TRUSTEE. (a) The Trustee hereby
acknowledges its acceptance on behalf of the Trust of all right, title and
interest in and to the Trust Assets, now existing and hereafter created and
transferred to the Trust pursuant to Section 2.01 and the Trustee declares that
it shall maintain such right, title and interest, upon the trust herein set
forth, for the benefit of all Certificateholders.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
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SECTION 2.03. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
RELATING TO THE TRANSFEROR. The Transferor hereby represents and warrants to the
Trust as of the date hereof and, by accepting on the date of the initial
Transfer of Receivables the proceeds of such Transfer, as of such date and with
respect to any Series, as of the date of any Supplement and the related Closing
Date, unless otherwise stated in such Supplement, that:
(a) ORGANIZATION AND GOOD STANDING. The Transferor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full corporate power, authority and legal right
to own its properties and conduct its business as presently owned or conducted,
to execute, deliver and perform its obligations under this Agreement and the
Receivables Purchase Agreement, and to execute and deliver to the Trustee
pursuant hereto the Certificates.
(b) DUE QUALIFICATION. The Transferor is duly qualified to do
business and is in good standing as a corporation or foreign corporation, as
applicable, and has obtained all necessary licenses and approvals, in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on the Transferor's ability to
perform its obligations hereunder, under the applicable Supplement or under the
Receivables Purchase Agreement.
(c) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement and the applicable Supplement and the Receivables Purchase
Agreement by the Transferor, and the execution and delivery by the Transferor to
the Trustee of the Certificates and the consummation by the Transferor of the
transactions provided for in this Agreement and the applicable Supplement and
the Receivables Purchase Agreement, have been duly authorized by all necessary
corporate action on the part of the Transferor and this Agreement and the other
documents and agreements executed in connection herewith have been duly executed
and delivered on behalf of the Transferor.
(d) ENFORCEABILITY. Each of this Agreement, the applicable
Supplement and the Receivables Purchase Agreement constitutes a legal, valid and
binding obligation of the Transferor enforceable against the Transferor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, now or hereafter in effect, and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity). The Receivables Purchase
Agreement is in full force and effect, and is not subject, as to any party
thereto, to any specific dispute, offset, counterclaim or defense of such party.
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(e) NO CONFLICT. The Transferor's execution and delivery of
this Agreement, the applicable Supplement, the Receivables Purchase Agreement
and the Certificates, performance of the transactions contemplated by this
Agreement and the applicable Supplement and the Receivables Purchase Agreement,
and fulfillment of the terms hereof and thereof applicable to the Transferor, do
not conflict with or violate any Requirements of Law applicable to the
Transferor, violate any provision of, or require any filing (except for the
filings under the UCC required by this Agreement, each of which has been or is
being duly made and will be in full force and effect on the applicable Closing
Date), registration, consent or approval under, any Requirement of Law presently
in effect having applicability to the Transferor, except for such filings,
registrations, consents or approvals as have already been obtained and are in
full force and effect, conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which the Transferor is a party or by which it or
its properties are bound, or result in, or require, the creation or imposition
of any lien upon or with respect to any of the properties now owned or hereafter
acquired by the Transferor other than as specifically contemplated by this
Agreement.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Trans- feror, threatened against the
Transferor before any Governmental Authority.
(g) CONSENTS. No authorization, consent, license, order or
approval of, registration or declaration with any Governmental Authority is
required to be obtained, effected or given by the Transferor in connection with
the execution and delivery of this Agreement the applicable Supplement, the
Receivables Purchase Agreement, the transfer of the Trust Assets to the Trust
and the Certificates by the Transferor or its performance of its obligations
under this Agreement, the applicable Supplement and the Receivables Purchase
Agreement or the transactions contemplated hereby and thereby and the
fulfillment by the Transferor of the terms hereof, except for (i) the filings of
the financing statements or other documents required to have been filed on or
prior to the Closing Date pursuant to Section 2.01, all of which were so filed
and are in full force and effect, and (ii) the filing of any amendments,
assignments or continuation statements which may become applicable pursuant to
Section 2.01.
(h) LIENS ON PROPERTIES. Except as created hereby, and except
for Liens that will be terminated prior to the initial Transfer of Receivables
on the Closing Date, there are no Liens of any nature whatsoever on any
Receivable. The Transferor is
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not a party to any contract, agreement, lease or instrument (other than this
Agreement) the performance of which, either unconditionally or upon the
happening of an event, will result in or require the creation of any Lien on any
Receivable, or otherwise result in a violation of this Agreement.
(i) CONTRACTUAL OBLIGATIONS. (i) The Transferor is not a party
to any indenture, loan or credit agreement or any lease or other agreement or
instrument, or subject to any Requirements of Law, that would have a material
adverse effect on the ability of the Transferor to carry out its obligations
under this Agreement, the applicable Supplement or the Receivables Purchase
Agreement, and (ii) neither the Transferor nor, to the best of the knowledge of
the Transferor, any other party is in default in any respect under or with
respect to the Receivables Purchase Agreement or any other material contract,
agreement, lease or other instrument to which the Transferor is a party.
(j) INVESTMENT COMPANY ACT. The Transferor is not an
"investment company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, or a company controlled by, an "investment company", within
the meaning of and as such terms are defined in the Investment Company Act.
(k) LOCATIONS. The chief place of business and chief executive
office of the Transferor are located at the address of the Transferor referred
to in Section 13.05, and the locations of the offices where the Transferor keeps
the originals of its books, records and documents regarding the Receivables and
the other Trust Assets are listed on Schedule 2.03(j) hereto (or at such other
locations, notified to the Trustee in accordance with Section 2.05(d), in
jurisdictions with respect to which all applicable action required by the last
two paragraphs of Section 2.01(a) has been taken and completed).
(l) TRADENAMES. The legal name of the Transferor is as set
forth on the signature page of this Agreement and the Transferor has no
tradenames, fictitious names, assumed names or "doing business as" names.
(m) SUBSIDIARIES. The Transferor has no subsidiaries.
(n) INFORMATION. (i) Each certificate, information, exhibit,
financial statement, document, book or record or report furnished by the
Transferor to the Trustee or the Servicer in connection with this Agreement and
(ii) any information contained in the documents set forth in Schedule II hereto
regarding the Transferor provided by the Transferor to Investor
Certificateholders is accurate in all material respects as of its date and no
such document contains any material misstatement of fact or omits to state a
material fact or any fact necessary to make the statements contained therein not
materially misleading.
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(o) SOLVENCY. The Transferor is solvent and will not become
insolvent after giving effect to the transactions contemplated by this
Agreement; the Transferor is currently repaying all of its indebtedness as such
indebtedness becomes due; and, after giving effect to the transactions
contemplated by this Agreement, the Transferor will have adequate capital to
conduct its business as presently conducted and as contemplated by this
Agreement.
(p) COMPLIANCE. The Transferor has complied in all material
respects with all Requirements of Law with respect to it, its business and
properties and all Receivables transferred to the Trust hereunder and the
Contracts related thereto.
(q) TAXES. The Transferor has filed all material tax returns
(federal, state and local) which it reasonably believes are required to be filed
and has paid or made adequate provision for the payment of all taxes,
assessments and other governmental charges due from the Transferor or is
contesting any such tax, assessment or other governmental charge in good faith
through appropriate proceedings. The Transferor knows of no basis for any
material additional tax assessment for any fiscal year for which adequate
reserves have not been established.
(r) USE OF PROCEEDS. No proceeds of the issuance of any
Certificate will be used by the Transferor to acquire any security in a
transaction that is subject to sections 13 and 14 of the Securities Exchange Act
of 1934, as amended, or to purchase or carry any margin security in violation of
any applicable law or regulation.
(s) WHEELING-PITTSBURGH COLLECTION ACCOUNTS. The
Wheeling-Pittsburgh Collection Account Banks are the only institutions holding
any lock-box accounts for the receipt of payments from Obligors in respect of
Receivables (subject to such changes as may be made from time to time in
accordance with Section 4.02) and all Obligors, and only such Obligors, have
been or will be instructed to make payments only to Wheeling- Pittsburgh
Collection Accounts and such instructions have not been modified or revoked by
Transferor and such instructions are, to the best knowledge of the Transferor,
in full force and effect.
(t) EARLY AMORTIZATION EVENT. As of the Closing Date, no Early
Amortization Event and no condition that with the giving of notice and/or the
passage of time would constitute an Early Amortization Event, has occurred and
is continuing.
(u) ERISA. No Plan maintained by the Transferor or any of its
ERISA Affiliates has any accumulated funding deficiency (within the meaning of
Section 302 of ERISA or Section 412 of the Internal Revenue Code), whether or
not waived. The
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Transferor and each ERISA Affiliate of the Transferor has timely made all
contributions required to be made by it to any Plan and Multiemployer Plan to
which contributions are or have been required to be made since January 3, 1991
by the Transferor or such ERISA Affiliate, and no event requiring notice to the
PBGC under Section 302(f) of ERISA has occurred and is continuing or could
reasonably be expected to occur with respect to any such Plan, in any case, that
could reasonably be expected to result, directly or indirectly, in any lien
being imposed on the property of the Transferor or the payment of any material
amount to avoid such lien. No Plan Event with respect to the Transferor or any
of its ERISA Affiliates has occurred or could reasonably be expected to occur
that could reasonably be expected to result, directly or indirectly, in any Lien
being imposed on the property of the Transferor or the payment of any material
amount to avoid such Lien.
The representations and warranties set forth in this Section
2.03 shall survive the Transfer of the Receivables to the Trust and the issuance
of the Certificates, and shall cease and be of no effect upon repayment in full
of the Invested Amount of the last outstanding Series and all other obligations
of the Transferor hereunder. Upon discovery by the Transferor, the Servicer or
the Trustee of a material breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties and to any Enhancement Providers. The Trustee's obligations
in respect of any such breach are limited as provided in Section 11.02(g).
SECTION 2.04. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
RELATING TO THE TRUST ASSETS. The Transferor hereby represents and warrants to
the Trust as of the date hereof and, by accepting on the date of the initial
Transfer of Receivables the proceeds of such Transfer, as of such date and, in
the case of the representations and warranties contained in Sections 2.04(a),
(b), (c), (d), (e) and (f) below, by accepting on each date during the Revolving
Period for any Series the proceeds of each Transfer of Receivables, as of such
date, that:
(a) VALID TRANSFER. The Receivables Purchase Agreement creates
a valid sale, transfer and assignment to the Transferor of, and the Transferor
is the legal and beneficial owner of, all right, title and interest of W-P Steel
in and to the Receivables now existing and hereafter-created during the
Revolving Period and the proceeds thereof. This Agreement constitutes a valid
transfer and assignment to the Trust of all right, title and interest of the
Transferor in and to the Receivables now existing and hereafter created and
purchased by the Transferor pursuant to the Receivables Purchase Agreement, and
in and to all other Trust Assets and the proceeds thereof and such funds as are
required to be deposited pursuant to this
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Agreement from time to time in the Wheeling-Pittsburgh Collection Account, the
Concentration Account and any Series Account, or, if this Agreement does not
constitute such a transfer and assignment, constitutes a valid grant to the
Trust of a first priority perfected "security interest" (as defined in the UCC
of the jurisdiction the law of which governs the perfection of the interest in
the Receivables and other Trust Assets created hereunder) in all right, title
and interest of the Transferor in and to the Receivables now existing and
hereafter created and purchased by the Transferor pursuant to the Receivables
Purchase Agreement, and in and to all other Trust Assets and the proceeds
thereof which, in the case of existing Receivables and the other existing Trust
Assets and the proceeds thereof, is enforceable (except as such enforceability
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting creditors' rights generally, now or hereafter in
effect, and except as such enforceability may be limited by general principles
of equity, whether considered in a suit of law or in equity) by the Trustee upon
execution and delivery of this Agreement, and which, in the case of the
Receivables and all other Trust Assets hereafter created and the proceeds
thereof, will be enforceable (except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, now or hereafter in effect, and
except as such enforceability may be limited by general principles of equity,
whether considered in a suit of law or in equity) by the Trustee upon such
creation. Upon the filing of the financing statements and, in the case of the
Receivables hereafter created and the proceeds thereof, upon the creation
thereof and payment therefor, the Trust shall have an ownership or first
priority perfected security interest in those Trust Assets in which a security
interest may be perfected by filing and the proceeds thereof. The Transferor has
caused the Servicer to clearly and unambiguously ▇▇▇▇ all its computer records
and all its microfiche storage files, if any, regarding such Receivables as the
property of the Trust and shall cause the Servicer to maintain such records in a
manner such that the Trust's perfected interest of first priority in the
Receivables shall not be adversely affected in any material respect.
(b) NO CLAIM OR INTEREST. Except as otherwise provided in this
Agreement and the applicable Supplement, neither the Transferor nor any Person
claiming through or under the Trans- feror has any claim to or interest in the
Concentration Account or any Series Account. Each such Receivable and
Collections with respect thereto has been or will be transferred to the Trust
free and clear of any adverse claim or interest of any other Person (other than
disputes with Obligors in the ordinary course of business or in connection with
an Insolvency Event of the related Obligor) not holding through the Trust.
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(c) OUTSTANDING BALANCE; NET RECEIVABLES BALANCE. As of the
Closing Date and on each Series Issuance Date, the Net Receivables Balance is at
least equal to the sum of (i) the aggregate of the Loss and Dilution Reserves
for all outstanding Series, (ii) the aggregate of the Yield Reserves for all
out- standing Series and (iii) the Trust Invested Amount (computed as if reduced
by (A) the aggregate amount of Cure Funds held in the Reserve Accounts of all
outstanding Series and (B) funds allocated to the Trust Partial Amortization
Amount and held in the Concentration Account).
(d) LIENS. Each Receivable and all other Trust Assets have
been Transferred to the Trust free and clear of any Lien except as created
hereby or by the Receivables Purchase Agreement.
(e) ELIGIBILITY. (i) On the Closing Date each Receivable then
existing and transferred to the Trust pursuant to Section 2.01 hereof satisfies
the conditions in clauses (v) and (vi) of the definition of Eligible Receivable
and as of the date of Transfer to the Trust hereunder of each Receivable
hereafter created, such Receivable will satisfy the conditions in clauses (v)
and (vi) of the definition of Eligible Receivable.
(ii) Each such Receivable was purchased in accordance
with the terms of the Receivables Purchase Agreement, which is
in full force and effect.
(iii) Each Receivable classified as an "Eligible
Receivable" by the Transferor in any document or report
delivered hereunder will satisfy the requirements of
eligibility contained in the definition of Eligible
Receivable.
(f) INVESTMENT COMPANY ACT. Each Transfer of Receivables to
the Trust hereunder constitutes a purchase or other acquisition of notes,
drafts, acceptances, open accounts receivable or other obligations representing
part or all of the sales price of merchandise or services within the meaning of
Section 3(c)(5) of the Investment Company Act.
(g) OFFERING OF CERTIFICATES. Neither the Transferor nor any
agent acting on its behalf has, directly or indirectly, offered any Certificate
or any similar security of the Transferor for sale to, or solicited any offer to
buy any Certificate or any similar security of the Transferor from, or otherwise
approached or negotiated with respect thereto, with any Person which, and
neither the Transferor nor any agent acting on its behalf has taken or will take
any action which, would subject the issuance or sale of any Certificate to the
provisions of Section 5 of the Act or to the qualification provisions of any
securities or blue sky law of any applicable jurisdiction.
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In the event of a breach with respect to any Receivables of the
representation and warranty set forth in Section 2.04(e)(iii) above (a) which
cannot be cured by the Business Day following the first day on which a
Responsible Officer of the Transferor has knowledge thereof and (b) which causes
the Net Receivables Balance to be less than the Required Net Receivables
Balance, the Transferor shall repurchase an amount of such Receivables (each, a
"Reconveyed Receivable") from the Trust such that the payment for such
Reconveyed Receivables is sufficient to cause the Net Receivables Balance to be
equal to or greater than the Required Net Receivables Balance. The Servicer
shall deduct the unpaid balance of each such Reconveyed Receivable from the
balance of Eligible Receivables in the Trust and on and after the date of such
removal, each Reconveyed Receivable so removed shall not be included in the
calculation of the Net Receivables Balance. As payment for each such Reconveyed
Receivable the Transferor shall make or cause to be made a deposit pro rata (by
Floating Allocation Percentage or Fixed Allocation Percentage, as applicable) in
the Reserve Accounts of each outstanding Series in immediately available funds
in an amount equal to the aggregate of the unpaid principal balances of such
Reconveyed Receivables. The Transferor shall make such deposit, or cause such
deposit to be made, by the close of business on the Business Day following the
first day a Responsible Officer of the Transferor has knowledge of the existence
of such Reconveyed Receivables. Such deposit shall be considered payment in full
for each such Reconveyed Receivable during the Collection Period in which such
payment occurs. Upon each removal of a Reconveyed Receivable from the Trust, the
Trust shall automatically and without further action be deemed to transfer,
assign, set-over and otherwise convey to or upon the order of the Transferor,
without recourse, representation or warranty, all the right, title and interest
of the Trust in and to such Reconveyed Receivable and Collections with respect
thereto and all proceeds thereof. Collections related to Reconveyed Receivables
shall be deposited by the Trustee to the Transferor Account. The Trustee shall
execute such documents and instruments of transfer or assignment as shall be
prepared by the Transferor or the Servicer, and shall take such other actions as
shall reasonably be requested by the Transferor, to effect the conveyance of
such Reconveyed Receivable pursuant to this Section 2.04. The obligation of the
Transferor set forth in this Section 2.04 shall constitute the sole remedy
respecting any breach of the representations and warranties set forth in this
Section 2.04 with respect to such Receivable available to the Investor
Certificateholders or the Trustee on behalf of the Investor Certificateholders.
The representations and warranties set forth in this Section
2.04 shall survive the Transfer of the Receivables to the Trust and the issuance
of the Certificates, and shall cease and be of no effect upon repayment in full
of the Invested Amount of
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the last outstanding Series and all other obligations of the Transferor
hereunder. Upon discovery by the Transferor, the Servicer or the Trustee of a
material breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties and to any Enhancement Provider. The Trustee's obligations in respect of
any such breach are limited as provided in Section 11.02(g).
SECTION 2.05. AFFIRMATIVE COVENANTS OF THE TRANSFEROR. During
the term of this Agreement, the Transferor hereby covenants and agrees that,
until all Series are no longer outstanding under the related Supplement:
(a) COMPLIANCE WITH LAW. The Transferor shall duly satisfy all
obligations on its part to be fulfilled under or in connection with the
Receivables, will maintain in effect all qualifications required under
Requirements of Law in order to properly purchase and convey the Receivables and
other Trust Assets to the Trust and will comply in all material respects with
all Requirements of Law applicable to the Transferor, its business and
properties and the Trust Assets, where failure to so comply would have a
material adverse effect on the Trust Assets or the ability of the Transferor to
perform in any material respects its obligations hereunder or under the
Receivables Purchase Agreement.
(b) PRESERVATION OF CORPORATE EXISTENCE. The Trans- feror will
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its formation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to
maintain such qualification would materially and adversely affect (i) the
interests of the Trustee or of the Investor Certificateholders hereunder or in
the Trust Assets, (ii) the collectability of the Receivables or (iii) the
ability of the Transferor or the Servicer to perform its obligations hereunder
or under the Receivables Purchase Agreement in any material respects.
The Transferor shall provide to the Trustee access to the
documentation regarding the Receivables in such cases where the Trustee is
required in connection with the enforcement of the rights of Certificateholders
or by applicable statutes or regulations to review such documentation, such
access being afforded without charge but only (i) upon reasonable written
request, (ii) during normal business hours, (iii) subject to the written
Transferor's normal security and confidentiality procedures and (iv) at
reasonably accessible offices in the continental United States designated by the
Transferor.
(c) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Transferor
will (i) keep proper books of record and account,
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which shall be maintained or caused to be maintained by the Transferor and shall
be separate and apart from those of any Affiliate of the Transferor, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Transferor in accordance with generally accepted
accounting principles consistently applied, and (ii) maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Receivables in the event of the
destruction of the originals thereof) and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate
to permit the daily identification of each new Receivable and all Collections of
and adjustments to each existing Receivable).
(d) LOCATION OF RECORDS. The Transferor will keep its chief
place of business and chief executive office, and the office where it keeps the
books, records and documents regarding the Trust Assets, at the address of the
Transferor referred to in Section 13.05 or, upon 45 days' prior written notice
to the Trustee, at any other location within the United States with respect to
which all applicable action required by the last two paragraphs of Section
2.01(a) shall have been taken and completed.
(e) MAINTENANCE OF SEPARATE DIRECTOR. The Transferor will
maintain at least one independent director who is not an officer, director or
employee of (i) W-P Steel or (ii) any Affiliate, or a parent, child, spouse or
sibling of any such Person; provided, however, that if such independent director
dies or resigns the Transferor shall have 10 Business Days to replace that
person with another independent director.
(f) PAYMENT OF TAXES, ETC. The Transferor will pay promptly
when due all taxes, assessments and governmental charges or levies imposed upon
it or any Trust Asset, or in respect of its income or profits therefrom, and any
and all claims of any kind, except that no such amount need be paid if (i) such
non-payment could not subject any Indemnified Party to civil or criminal penalty
or liability or involve any risk of the sale, forfeiture or loss of any of the
property, rights or interests covered hereunder or under the Receivables
Purchase Agreement, (ii) the charge or levy is being contested in good faith and
by proper proceedings and (iii) the obligation to pay such amount is adequately
reserved against in accordance with and to the extent required by generally
accepted accounting principles.
(g) REPORTING REQUIREMENTS. The Transferor will:
(i) within one Business Day after a Responsible
Officer becomes aware of the occurrence of any Early Amortization
Event, the commencement of a Partial
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Amortization Period or Cure Period and any event which, with the giving
of notice or lapse of time or both, would constitute an Early
Amortization Event, notify the Trustee of such occurrence;
(ii) as soon as possible and in any event (A) within three
Business Days after a Responsible Officer becomes aware of the
occurrence of any Early Amortization Event, the commencement of a
Partial Amortization Period or Cure Period, and any event which, with
the giving of notice or lapse of time or both, would constitute an
Early Amortization Event, furnish to the Trustee the statement of the
chief administrative and credit officer or other Responsible Officer of
the Transferor setting forth details of such Early Amortization Event
or Partial Amortization Period or Cure Period commencement or event and
the action which the Transferor has taken and proposes to take with
respect thereto, and (B) within three Business Days after the
occurrence thereof, notice of any other event, development or
information which is reasonably likely to materially and adversely
affect the ability of the Transferor to perform its obligations under
this Agreement or the Receivables Purchase Agreement; and
(iii) promptly, from time to time, furnish to the Trustee
such other information, documents, records or reports respecting the
Receivables, the other Trust Assets or the condition or operations,
financial or otherwise, of the Transferor as the Trustee may from time
to time reasonably request.
(h) RECEIVABLES PURCHASE AGREEMENT. The Transferor will at its
expense timely perform and comply in all material respects with all provisions,
covenants and other promises required to be observed by it under the Receivables
Purchase Agreement, maintain the Receivables Purchase Agreement in full force
and effect, enforce its rights under the Receivables Purchase Agreement
substantially in accordance with its terms and comply with its obligations under
Contracts and invoices giving rise to Receivables. The Transferor shall promptly
give the Trustee copies of any notices, reports or certificates given or
delivered to the Transferor under the Receivables Purchase Agreement.
(i) UCC OPINION. On or before March 31 of each calendar year,
beginning with March 31, 1995, the Transferor shall deliver to the Trustee an
Opinion of Counsel to the effect that no financing statements or continuation
statements, other than those currently filed, are necessary to be filed by the
Transferor or the Servicer in order to fully preserve and protect the interest
of the Trustee, Transferor or any of the Certifi- cateholders hereunder in and
to the Receivables.
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(j) RATING MAINTENANCE. For so long as the Investor
Certificates of any Series are outstanding, the Transferor shall use its best
efforts to cause each Rating Agency to maintain its rating of the Investor
Certificates of each such Series.
(k) FURTHER ACTION. The Transferor shall, from time to time,
execute and deliver to the Trustee any instruments, financing or continuation
statements or other writings reasonably necessary to maintain the perfection or
priority of the Trustee's ownership or security interest in the Receivables and
the Collections under the UCC or other applicable law. The Transferor shall,
from time to time, execute and deliver to the Obligors on the Receivables any
bills, statements and letters or other writings necessary to carry out the terms
and provisions of this Agreement and to facilitate the collection of the
Receivables in a manner consistent with the Credit Policy and Procedures Manual.
SECTION 2.06. NEGATIVE COVENANTS OF THE TRANSFEROR. The
Transferor hereby further covenants that, unless it shall have received the
written consent of the Majority in Interest of each outstanding Series and the
Rating Agency Condition shall have been satisfied, until all Series are no
longer outstanding under the related Supplement:
(a) NO LIENS. Except for the Transfer hereunder and the
security interest granted pursuant to Section 2.01(b), the Transferor will not
sell, pledge, assign or transfer any Receivable or any interest therein or any
other Trust Asset to any other Person, or grant, create, incur, assume or suffer
to exist any Lien on, any Trust Asset or any other property or asset of the
Transferor (other than the Transferor Certificate, any Supplemental Certificate
and funds deposited to the Transferor's Account pursuant to the applicable
Supplement or the Transferor Certificate), whether now existing or hereafter
created, or any interest therein, and the Transferor shall defend the right,
title and interest of the Trust in and to the Trust Assets, whether now existing
or hereafter created, against all claims of third parties claiming through or
under the Transferor.
(b) ACTIVITIES OF THE TRANSFEROR. The Transferor will not
engage in, enter into or be a party to any business, activity or transaction of
any kind other than the businesses, activities and transactions contemplated and
authorized by this Agreement or the Receivables Purchase Agreement or any
document related hereto or thereto or incidental to its ability to carry out its
obligations under such agreements.
(c) INDEBTEDNESS. Except as provided herein or in the
Receivables Purchase Agreement, the Transferor will not create, incur or assume
any indebtedness (other than operating expenses incurred in the performance of
or incidental to its obligations
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under this Agreement which shall not exceed $50,000 per annum) or sell or
transfer any receivables to a trust or other Person which issues securities in
respect of any such receivables.
(d) GUARANTEES. Except as provided for herein, the Transferor
will not become or remain liable, directly or contingently, in connection with
any indebtedness or other liability of any other Person, whether by guarantee,
endorsement (other than endorsements of negotiable instruments for deposit or
collection in the ordinary course of business), agreement to purchase or
repurchase, agreement to supply or advance funds, or otherwise.
(e) INVESTMENTS. The Transferor will not make or suffer to
exist any loans or advances to, or extend any credit to, or make any investments
(by way of transfer of property, contributions to capital, purchase of stock or
securities or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in, any Affiliate or any other Person except for purchases of
Receivables pursuant to the terms of the Receivables Purchase Agreement and
investments in Eligible Investments in accordance with the terms of this
Agreement.
(f) EXTENSION OR AMENDMENT OF RECEIVABLES. The Transferor will
not extend, amend or otherwise modify (or consent or fail to object to any such
extension, amendment or modifica- tion by W-P Steel), except as permitted in
Section 3.01(c), the terms of any Receivable, or amend, modify or waive (or
consent or fail to object to any such amendment, modification or waiver by W-P
Steel) any payment term or condition of any invoice related thereto (other than
(i) as provided in the Credit Policy and Procedures Manual and (ii) Receivables
of Wheeling Corrugating in the April 1 Program) if the effect of such amendment,
modification or waiver would impair the collectibility or delay the payment of
any then existing Receivable beyond 60 days from the date of the invoice. The
Transferor will not rescind or cancel, or permit the rescission or cancellation
of, any Receivable except as ordered by a court of competent jurisdiction or
other Governmental Authority. Notwithstanding the foregoing provisions of this
Section 2.06(f), each of the Transferor and W-P Steel may extend, amend, modify,
cancel or rescind (and the Transferor need not object to any such action by W-P
Steel) any Diluted Receivable in connection with a valid dispute; PROVIDED,
-------- HOWEVER, that such amendment, modification, cancellation or -------
rescission shall not have a material adverse effect on the interests of the
Certificateholders.
(g) CHANGE IN CORPORATE NAME. The Transferor will not (i) make
any change to its corporate name, identity or corporate structure in any manner
or principal place of business or use any tradenames, fictitious names, assumed
names or "doing business as" names unless, prior to the effective date of any
such name
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change, change in principal place of business, or use, the Transferor delivers
to the Trustee such financing statements (Forms UCC-l and UCC-3) executed by the
Transferor which the Trustee may reasonably request to reflect such name change
or use, together with such other documents and instruments that the Trustee may
reasonably request in connection therewith or (ii) change its jurisdiction of
formation unless the Trustee shall have received from the Transferor (A) written
notice of such change at least 90 days prior to the effective date thereof, and
(B) prior to the effective date thereof, if requested by the Trustee, an Opinion
of Counsel, in form and substance reasonably satisfactory to the Trustee, as to
such formation and the Transferor's valid existence and good standing and as to
the matters referred to in the first sentence of Section 2.04(a).
(h) RECEIVABLES PURCHASE AGREEMENT. The Transferor will not
(i) cancel or terminate the Receivables Purchase Agreement or consent to or
accept any cancellation or termination thereof, (ii) amend or otherwise modify
any term or condition of the Receivables Purchase Agreement or give any consent,
waiver or approval thereunder, (iii) waive any default under or breach of the
Receivables Purchase Agreement or (iv) take any other action under the
Receivables Purchase Agreement not required by the terms thereof, in each case,
to the extent that it would impair the value of any Trust Asset or impair in any
material respects the rights or interests of the Transferor thereunder or of the
Trustee or the Investor Certificateholders hereunder or thereunder.
(i) ORGANIZATION. Except as permitted by Section 2.06(k), the
Transferor will not amend its certificate of incorporation or bylaws.
(j) MAINTENANCE OF SEPARATE EXISTENCE. The Transferor will not
(i) fail to do all things necessary to maintain its existence as a corporation
separate and apart from W-P Steel and any Affiliate of W-P Steel, and any
Affiliate of the Transferor including, without limitation, conducting business
correspondence in its own name, holding regular meetings of, or obtaining
regular written consents from, its shareholders and Board of Directors and
maintaining appropriate books and records; (ii) suffer any limitation on the
authority of its own directors and officers to conduct its business and affairs
in accordance with their independent business judgment, or authorize or suffer
any Person other than its own directors and officers to act on its behalf with
respect to matters (other than matters customarily delegated to others under
powers of attorney) for which a corporation's own directors and officers would
customarily be responsible; (iii) fail to (A) maintain or cause to be maintained
by an agent of the Transferor under the Transferor's control physical possession
of all its books and records, (B) maintain capitalization adequate for the
conduct of its business, (C)
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account for and manage its liabilities separately from those of any other
Person, including, without limitation, payment of all payroll and other
administrative expenses and taxes from its own assets, (D) segregate and
identify separately all of its assets from those of any other Person, and (E)
maintain offices through which its business is conducted separate from those of
W-P Steel and any Affiliates of W-P Steel and any Affiliates of the Transferor
(provided that, to the extent that the Transferor and any of its Affiliates have
offices in the same location, there shall be a fair and appropriate allocation
of overhead costs and expenses among them, and each such entity shall bear its
fair share of such costs and expenses); (iv) commingle its funds with those of
W-P Steel and or any Affiliate of W-P Steel or any Affiliates of the Transferor,
or use its funds for other than the Transferor's uses; PROVIDED, HOWEVER, that
collections on certain accounts receivable belonging to W-P Steel may from time
to time be deposited into the Wheeling-Pittsburgh Collection Accounts or the
Concentration Account; (v) fail to (A) maintain the Transferor's books,
financial statements, accounting records and other corporate documents and
records separate from those of W-P Steel or any other entity, (B) act solely in
its corporate name and through its own authorized officers and agents, (C) make
investments directly or by brokers engaged and paid by the Transferor or its
agents (provided that if any such agent is an Affiliate of the Transferor it
shall be compensated at a fair market rate for its services), (D) separately
manage the Transferor's liabilities from those of W-P Steel or any Affiliates of
W-P Steel and pay its own liabilities, including all administrative expenses,
from its own separate assets, except that W-P Steel may pay the organizational
expenses of the Transferor, (E) pay from the Transferor's assets all obligations
and indebtedness of any kind incurred by the Transferor and (F) abide by all
corporate formalities, including the maintenance of current minute books; (vi)
not assume the liabilities of W-P Steel or any Affiliate of W-P Steel; and (vii)
not guarantee the liabilities of W-P Steel or any Affiliate of W-P Steel.
(k) OWNERSHIP; MERGER. The Transferor will not (i) sell any
shares of any class of its capital stock to any Person (other than W-P Steel),
or enter into any transaction of merger or consolidation, or convey or otherwise
dispose of all or substantially all of its assets (except as contemplated
herein) PROVIDED, that the Transferor shall not be prohibited from transferring
or pledging the Transferor Certificate, or (ii) terminate, liquidate or dissolve
itself (or suffer any termination, liquidation or dissolution), or (iii) acquire
or be acquired by any Person, except indirectly in connection with a
consolidation or merger of W-P Steel (which consolidation or merger shall be
permitted by Section 8.02 if W-P Steel is then serving as the Servicer), in
connection with which the Trustee shall have received an Opinion of Counsel,
which counsel is not an employee of W-P Steel or any of its Affiliates, that
such
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consolidation or merger does not affect the separate existence of Transferor.
(l) ERISA. The Transferor shall promptly give the Trustee
notice of the following events, as soon as possible in any event within 30 days
after the Transferor or any of its ERISA Affiliates knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan to which the Transferor or any of its ERISA Affiliates
contributed, or any withdrawal from, or the termination, reorganization or
Insolvency Event of any Multiemployer Plan to which the Transferor or any of its
ERISA Affiliates contributes or to which contributions have been required to be
made by the Transferor or such ERISA Affiliate since January 3, 1991 or (ii) the
institution of proceedings or the taking of any other action by the PBGC or the
Transferor or any of its ERISA Affiliates or any such Multiemployer Plan with
respect to the withdrawal from, or the termination, reorganization or Insolvency
Event of, any such Plan or Multiemployer Plan.
SECTION 2.07. ADDITION AND REMOVAL OF ORIGINATORS. (a) At any
time following the Closing Date, the Transferor may designate any Affiliate of
WP-Steel as an Originator (an "Additional Originator") provided that either of
the following conditions is satisfied: (i) the average of the aggregate
principal balance of Receivables generated by such Additional Originator as of
the last day of each of the immediately preceding twelve months does not exceed
5% of the average of the aggregate principal balance of Eligible Receivables
owned by the Trust as of the last day of each of such twelve months or (ii) the
Rating Agency Condition shall have been satisfied.
(b) The Transferor may cause any Originator (other than WP
Steel) to no longer be designated as an "Originator" (a "Removed Originator"),
and W-P Steel shall cease purchasing Receivables from such Removed Obligor,
provided that (i) the average of the aggregate principal balance of Receivables
generated by such Removed Originator as of the last day of each of the
immediately preceding twelve months does not exceed 5% of the average of the
aggregate principal balance of Eligible Receivables owned by the Trust as of the
last day of each of such twelve months, (ii) the Transferor provides timely
written notice of such change in designation to the Rating Agency, (iii) the
Rating Agency Condition shall have been satisfied and (iv) the Transferor shall
have delivered to the Trustee and any Enhancement Provider an Officer's
Certificate stating that the Transferor reasonably believes that the removal of
such Removed Originator will not result in the occurrence of an Early
Amortization Event.
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(c) Notwithstanding anything in this Section 2.07 to the
contrary, no Originator shall be designated as an Additional Originator or a
Removed Originator on any day if, as of such day, the aggregate cumulative
amount of Receivables generated by Additional Originators or Removed
Originators, including any Originator to be designated as an Additional
Originator or a Removed Originator on such day, is greater or less than the
aggregate principal balance of Eligible Receivables as of the Closing Date by
10% or more.
(d) Notwithstanding anything in this Section 2.07 to the
contrary, a Majority in Interest may consent to changes in the foregoing
subsections (a), (b) and (c) hereof, provided that the Rating Agency Condition
has been satisfied.
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ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS
RELATING TO THE SERVICER. (a) W-P Steel agrees to act as the Servicer for the
benefit of the Certificateholders under this Agreement (subject to Article X)
and the Certificateholders by their acceptance of the Certificates consent to
W-P Steel so acting as Servicer.
(b) The Servicer shall (subject to Article X) enforce its
respective rights and interests in, to and under the Receivables and the other
Trust Assets on behalf of the Trust. The Servicer shall service, administer and
collect the Receivables and, in connection therewith, the Servicer shall take or
cause to be taken all such actions as may be necessary or advisable to collect
each Receivable from time to time, all in accordance with applicable laws, rules
and regulations, with reasonable care and diligence, and in accordance with the
Credit Policy and Procedures Manual.
(c) Provided no Early Amortization Event or Servicer Default
shall have occurred and be continuing, and no Partial Amortization Period shall
have commenced and be continuing, the Servicer may, in accordance with the
Credit Policy Manual, extend the maturity, adjust the Outstanding Balance, or
otherwise modify the terms of any Defaulted Receivable or amend, modify or waive
any payment term or condition of any invoice related thereto, all as it may
determine to be appropriate to maximize Collections thereof, PROVIDED that, for
all purposes hereunder, any such Receivable shall remain a "Defaulted
Receivable" in the amount of its Outstanding Balance (without giving effect to
any such extension, adjustment, amendment, modification or waiver) until paid or
charged off as uncollectible.
(d) The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder, to do any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing
and subject to Section 10.01, the Servicer or its designee is hereby authorized
and empowered (i) to instruct the Trustee to make withdrawals and payments from
the Concentration Account, subject to the limitations set forth in Section 4.02
and as otherwise set forth in this Agreement, (ii) to instruct the Trustee to
make withdrawals and payments from the Series Accounts, subject to the
limitations set forth in Section 4.02 and as otherwise set forth in this
Agreement, (iii) to instruct the Trustee to take any action required or
permitted under any Enhancement, (iv) to make any filings, reports, notices,
applications and registrations with, and to seek any consents or authorizations
from, the
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Securities and Exchange Commission and any state securities authority on behalf
of the Trust as may be necessary or advisable to comply with any Federal or
state securities laws or reporting requirements, and (v) only (A) with the prior
consent of a Majority in Interest of the Investor Certificateholders of each
Series and (B) upon satisfaction of the Rating Agency Condition, to subcontract
with any other Person (at Servicer's expense) for servicing, administering or
collecting the Receivables; PROVIDED, that such Person shall not become Servicer
hereunder and the Servicer shall remain liable for the performance of the duties
and obligations of the Servicer pursuant to the terms hereof. The Trustee shall
execute any documents furnished by the Servicer which are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder and acceptable in form and substance to the Trustee. The
Trustee shall, upon the written request of the Servicer, furnish the Servicer
with any documents then in the Trustee's possession which are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
(e) The Servicer shall not, and no Successor Servicer shall be
obligated to, use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer or such Successor Servicer, as the case may be, in
connection with servicing other trade receivables or its business in general.
(f) The relationship of the Servicer (and of any successor to
the Servicer as servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor to
or with the Trust and shall not be construed to be that of a joint venturer,
partner, or agent, such that the acts of the Servicer are in any way vicariously
attributable to the Trustee in its individual capacity prior to such time as the
Trustee may serve as Servicer pursuant to the provisions of Article X.
SECTION 3.02. SERVICING COMPENSATION; SERVICER'S EXPENSES.
(a) COMPENSATION. As full compensation for its servicing
activities hereunder, the Servicer shall be entitled to receive a monthly
servicing fee (the "Servicing Fee") for each Collection Period (or portion
thereof) from the Closing Date until the termination of the Amortization Period,
payable in arrears on the Distribution Date with respect to such Collection
Period (or portion), in an amount equal to the aggregate of the Series Servicing
Fees specified in the Supplements. In the case of any Servicer other than W-P
Steel or any Affiliate thereof, the Servicing Fee may be a higher fee, as shall
be agreed to by the Trustee in its sole discretion, but in no event in excess of
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a per annum fee equal to the product of 1.00% and the Trust Invested Amount. The
Servicing Fee shall be payable only from Investor Collections pursuant to, and
subject to the priority of payment set forth in, the Supplements.
(b) EXPENSES. The Servicer's expenses include: first, the
Trustee's Fee (to the extent not paid from Collections); then all documented
expenses and liabilities (other than any liability of the Trust with respect to
any amount payable solely out of Collections or any personal liability of the
Trust to repay the Certificates) of the Trust not expressly stated herein to be
for the account of the Certificateholders, including without limitation expenses
related to enforcement of the Receivables and the other amounts due to the
Trustee pursuant to Section 11.05, the reasonable fees and disbursements of
independent accountants, and other fees and documented expenses including but
not limited to the costs of filing UCC continuation statements; provided that,
in no event shall the Servicer be liable for any federal, state or local income
or franchise tax, or any interest or penalties with respect thereto, assessed on
the Trust, the Trustee or the Certificateholders except as expressly provided
herein. Such expenses shall be payable, FIRST, from the Servicing Fee, and,
SECOND, to the extent not paid from the Servicing Fee, by the Transferor for its
own account, and, THIRD, to the extent the Transferor shall fail to pay any of
such expenses, by the Servicer for its own account, and the Servicer shall not
be entitled to any payment for any such expenses other than the Servicing Fee
and reimbursement from the Transferor. In addition, to the extent not paid from
the Servicing Fee, the Transferor shall pay for its own account, and, if the
Transferor fails to do so, the Servicer will pay, all fees and expenses incurred
by or on behalf of the Servicer in connection with its servicing activities
hereunder (including without limitation expenses related to enforcement of the
Receivables and the costs of a Service Transfer) or otherwise in connection
herewith (including without limitation the fees and expenses set forth above),
and the Servicer will not be entitled to any fee or other payment from, or claim
on, any of the Trust Assets (other than the Servicing Fee and reimbursement from
the Transferor). The Transferor's and Servicer's covenant to pay the expenses
and disbursements provided for in this Section 3.02(b) shall survive the
termination of this Agreement.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
W-P Steel, as initial Servicer, hereby makes, and each Successor Servicer by
acceptance of its appointment hereunder shall make, the following
representations and warranties, in the case of the initial Servicer, as of the
date hereof and as of the date of the initial Transfer of Receivables and with
respect to any Series as of the date of any Supplement and the related Closing
Date or, in the case of any Successor Servicer, the date of such appointment
and, with respect to any Series issued after
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such date, as of the date of the related Supplement and the related Closing
Date, in each case unless otherwise stated in such Supplement:
(a) ORGANIZATION AND GOOD STANDING. The Servicer is a
corporation or national banking association duly organized, validly existing and
in good standing under the applicable laws of its jurisdiction of organization
or incorporation and has, in all material respects, full power, authority and
legal right to own its properties and conduct its business including its
receivables servicing business as such properties are presently owned and as
such business is presently conducted and as is proposed to be conducted under
this Agreement and the Receivables Purchase Agreement, and to execute, deliver
and perform its obligations under this Agreement and the applicable Supplement.
(b) DUE QUALIFICATION. The Servicer is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals, in
each jurisdiction in which the servicing of the Receivables in accordance with
the terms of this Agreement and any Supplement requires such qualification,
except where failure to so qualify or to obtain such licenses or approvals would
not have a material adverse effect upon the Certificateholders or on its ability
to perform its obligations as Servicer under this Agreement and the applicable
Supplement.
(c) DUE AUTHORIZATION. The Servicer's execution, delivery and
performance of this Agreement and the applicable Supplement and the other
agreements and instruments executed or to be executed by the Servicer as
contemplated hereby, and the consummation of the transactions provided in this
Agreement and any Supplement, have been duly authorized by all necessary
corporate action on the part of the Servicer.
(d) BINDING OBLIGATION. This Agreement and the applicable
Supplement constitute a legal, valid and binding obligation of the Servicer
enforceable against it in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws now and hereafter in effect
affecting creditors' rights generally, and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at law or
in equity).
(e) NO CONFLICT. The Servicer's execution and delivery of this
Agreement, performance of the transactions contemplated by this Agreement and
the applicable Supplement, and fulfillment of the terms hereof and thereof
applicable to the Servicer, do not conflict with or violate in any material
respects any Requirements of Law applicable to the Servicer, or conflict with,
result in any breach of any of the material terms
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and provisions of, or constitute (with or without notice or lapse of time or
both) a default under, any material indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Servicer is a party or by which
it or its properties are bound.
(f) NO PROCEEDINGS. There are no proceedings or,
investigations pending or to the best knowledge of the Servicer, threatened
against the Servicer before any Governmental Authority (i) asserting the
illegality, invalidity or unenforceability or seeking any determination or
ruling that would affect the legality, binding effect, validity or
enforceability, of this Agreement and the applicable Supplement, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement and the applicable Supplement, or
(iii) seeking any determination or ruling that is reasonably likely to
materially and adversely affect the financial condition or operations of the
Servicer or the performance by the Servicer of its obligations under this
Agreement and the applicable Supplement.
(g) NO CONSENTS. No authorization, consent, license, order or
approval of or registration or declaration with any Person or Governmental
Authority is required to be obtained, effected or given by the Servicer in
connection with the execution and delivery of this Agreement and the applicable
Supplement by the Servicer or the performance of its obligations hereunder and
thereunder.
(h) WHEELING-PITTSBURGH COLLECTION ACCOUNTS. The names,
addresses and ABA numbers of all the Wheeling-Pittsburgh Collection Account
Banks, together with the account numbers of the Wheeling-Pittsburgh Collection
Accounts and the name of a contact person at such Wheeling-Pittsburgh Collection
Account Bank, are specified in Schedule I hereto as of the Closing Date. Also
specified in Schedule I hereto are the name, address and ABA numbers of the
Concentration Account Bank, together with the account number and the name of a
contact person for the Concentration Account as of the Closing Date.
(i) PAYMENT INSTRUCTIONS. The Servicer has notified the
Obligor on each Receivable to make payments on such Receivable to one of the
Wheeling-Pittsburgh Collection Accounts.
(j) DAILY REPORTS AND DETERMINATION DATE CERTIFICATES. Each
Daily Report and Determination Date Certificate delivered by the Servicer
pursuant to this Agreement shall be true and correct in all material respects as
of the date such report or
certificate is delivered.
(k) SERVICER DEFAULT. No Servicer Default has occurred or is
continuing.
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(l) EARLY AMORTIZATION EVENT. No Early Amortization Event has
occurred or is continuing.
The representations and warranties set forth in this Section
3.03 shall survive the Transfer of the Receivables to the Trust and the issuance
of the Certificates, and shall cease and be of no effect upon repayment in full
of the Invested Amount of the last outstanding Series and all other obligations
of the Transferor hereunder. Upon a discovery by the Transferor, the Servicer or
the Trustee of a material breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties. The Trustee's obligations in respect of any such breach
are limited as provided in Section 11.02(g).
SECTION 3.04. COVENANTS OF THE SERVICER. The Servicer hereby
covenants that, until the termination of the Amortization Period:
(a) CHANGE IN ACCOUNTS. The Servicer will not (i) terminate or
substitute any Concentration Account (or make any change in its instructions to
Wheeling-Pittsburgh Collection Account Banks regarding payments to be made to
the Concentration Account) except as required pursuant to Section 4.02 or any
Reserve Account except as required pursuant to the applicable Supplement or (ii)
add or terminate any institution as a Wheeling-Pittsburgh Collection Account
Bank from those listed in Schedule I hereto, except as otherwise permitted
pursuant to Section 4.02 and unless the Trustee shall have received notice of
such addition, termination or change and executed copies of Wheeling-Pittsburgh
Collection Account Notices to each new Wheeling-Pittsburgh Collection Account
Bank.
(b) COLLECTIONS. In the event that the Servicer or any
Affiliate thereof receives any Collections, the Servicer agrees to hold, or
cause such Affiliate to hold, all such Collections in trust and to deposit, or
cause such Affiliate to deposit, such Collections to the appropriate Collection
Account as soon as practicable, but in no event later than two Business Days
after receipt thereof.
(c) COMPLIANCE WITH REQUIREMENTS OF LAW. The Servicer will
duly satisfy in all material respects all obligations on its part to be
fulfilled under or in connection with each Receivable, will maintain in effect
all qualifications required under Requirements of Law in order to service
properly each Receivable and will comply in all material respects with all other
Requirements of Law in connection with servicing each Receivable.
(d) EXTENSION OR AMENDMENT OF RECEIVABLES. The Servicer will
not extend, amend or otherwise modify (or consent or fail to object to any such
extension, amendment or modification by W-P Steel), except as permitted in
Section 3.01(c), the terms of
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any Receivable, or amend, modify or waive (or consent or fail to object to any
such amendment, modification or waiver by W-P Steel) any payment term or
condition of any invoice related thereto (other than (i) as provided in the
Credit Policy and Procedures Manual and (ii) Receivables of Wheeling Corrugating
in the April 1 Program) if the effect of such amendment, modification or waiver
would impair the collectibility or delay the payment of any then existing
Receivable beyond 60 days from the date of the invoice (or 60 days from April 1
in the case of the April 1 Program). The Servicer will not rescind or cancel, or
permit the rescission or cancellation of, any Receivable except as ordered by a
court of competent jurisdiction or other Governmental Authority. Notwithstanding
the foregoing provisions of this Section 3.04(d), each of the Servicer and W-P
Steel may extend, amend, modify, cancel or rescind (and the Servicer need not
object to any such action by W-P Steel) any Diluted Receivable in connection
with a valid dispute; PROVIDED, HOWEVER, that such amendment, modification,
cancellation or rescission shall not have a material adverse effect on the
interests of the Certificateholders.
(e) PROTECTION OF CERTIFICATEHOLDERS' RIGHTS. The Servicer
will take no action which would impair the rights of Certificateholders in any
Receivable or Trust Asset, except as provided in this Agreement.
(f) DEPOSITS TO CONCENTRATION ACCOUNT OR ANY SERIES ACCOUNT OR
ANY WHEELING-PITTSBURGH COLLECTION ACCOUNT. The Servicer will not deposit or
otherwise credit, or cause to be so deposited or credited, or consent or fail to
object to any such deposit or credit known to it, cash or cash proceeds other
than Collections to the Concentration Account, any Wheeling-Pittsburgh
Collection Account or any Series Account.
(g) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. The
Servicer will take no action to cause any Receivable to be evidenced by any
"instrument" (as defined in the UCC of the State the law of which governs the
perfection of the interest in such Receivable created hereunder), except in
connection with its enforcement, in which event the Transferor shall deliver
such instrument to the Trustee as soon as reasonably practicable but in no event
more than three Business Days after execution thereof.
(h) REPORTING REQUIREMENTS. The Servicer will furnish to the
Trustee:
(i) within one Business Day after a Responsible
Officer becomes aware of the occurrence of a Servicer Default, an Early
Amortization Event, the commencement of a Partial Amortization Period
or Cure Period and any event which, with the giving of notice or lapse
of time or both, would constitute an Early Amortization Event,
notification of such occurrence;
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(ii) as soon as possible and in any event (A) within
three Business Days after a Responsible Officer becomes aware of the
occurrence of a Servicer Default, any Early Amortization Event, the
commencement of a Partial Amortization Period or Cure Period, and any
event which, with the giving of notice or lapse of time or both, would
constitute a Servicer Default or an Early Amortization Event, the
statement of the chief financial officer or chief accounting officer or
other Responsible Officer setting forth details of such Servicer
Default or Early Amortization Event or Partial Amortization Period or
Cure Period or commencement or event and the action which the Servicer
has taken and proposes to take with respect thereto, and (B) within
three Business Days after the occurrence thereof, notice of any other
event, development or information which is reasonably likely to
materially and adversely affect the ability of the Servicer to perform
its obligations under this Agreement; and
(iii) promptly, from time to time, such other information,
documents, records or reports within its possession respecting the
Receivables, the other Trust Assets or the condition or operations,
financial or otherwise, of the Servicer as the Trustee may from time to
time reasonably request.
The Servicer shall provide to the Trustee access to the
documentation regarding the Receivables in such cases where the Trustee is
required in connection with the enforcement of the rights of Certificateholders
or by applicable statutes or regulations to review such documentation, such
access being afforded without charge but only (i) upon reasonable request, (ii)
during normal business hours, (iii) subject to the Servicer's normal security
and confidentiality procedures and (iv) at reasonably accessible offices in the
continental United States designated by the Servicer.
(i) FILING OF CONTINUATION STATEMENTS. The Servicer shall
prepare and file such continuation statements and any other documents reasonably
requested by the Trustee, Transferor or any of the Certificateholders or which
may otherwise be required by law to fully preserve and protect the interest of
the Trustee, Transferor or any of the Certificateholders hereunder in and to the
Receivables.
(j) CHANGE IN ITS CREDIT POLICY AND PROCEDURES MANUAL. The
Servicer shall comply with and perform its servicing obligations with respect to
the Receivables in accordance with the Credit Policy and Procedures Manual,
except insofar as any failure to so comply or perform would not adversely affect
the Certificateholders in any material respects. Subject to compliance with all
Requirements of Law, the Transferor or the Servicer, as applicable, may change
the terms and provisions of the Credit Policy and Procedures Manual provided,
however, that (i) with respect to a material change of
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collection policies, the Rating Agency Condition is satisfied with respect
thereto and (ii) with respect to a material change of collection procedures, no
material and adverse effect on any Series of Certificate would result.
(k) CHANGE IN CORPORATE NAME. The Servicer will not (i) (if
the Servicer is W-P Steel) make any change to its company name or principal
place of business or use any tradenames, fictitious names, assumed names or
"doing business as" names for such company's business operations unless, prior
to the effective date of any such name change, change in principal place of
business, or use, the Servicer delivers to the Trustee such financing statements
(Forms UCC-l and UCC-3) executed by the Servicer which the Trustee may
reasonably request to reflect such name change or use, together with such other
documents and instruments that the Trustee may reasonably request in connection
therewith or (ii) change its jurisdiction of incorporation unless the Trustee
shall have received from the Servicer (A) written notice of such change at least
20 days prior to the effective date thereof, and (B) prior to the effective date
thereof an Opinion of Counsel, in form and substance reasonably satisfactory to
the Trustee, as to such incorporation and the Servicer's valid existence and
good standing and as to the matters referred to in the first sentence of Section
2.04(a).
(l) CREDIT AND COLLECTION POLICIES. The Servicer will comply
in all material respects with the Credit Policy Manual in regard to each
Receivable.
(m) RECEIVABLES PURCHASE AGREEMENT. The Servicer will at its
expense timely perform and comply in all material respects with all provisions,
covenants and other promises required to be observed by it under the Receivables
Purchase Agreement, maintain the Receivables Purchase Agreement in full force
and effect, enforce its rights under the Receivables Purchase Agreement in
accordance with its terms, and make to any party to the Receivables Purchase
Agreement, upon the Trustee's request, such reasonable demands and requests for
information and reports or for action as the Servicer is entitled to make
thereunder.
(n) NOTIFICATION OF OBLIGORS. The Servicer will notify the
Obligor on each Receivable purchased by the Trust on or after the Closing Date
to make payments on such Receivable to one of the Wheeling-Pittsburgh Collection
Accounts.
(o) MODIFICATION OF SYSTEMS. The Servicer agrees, promptly
after the replacement or any material modification of any computer, automation
or other operating systems (in respect of hardware or software) used to provide
the Servicer's services as Servicer or to make any calculations or reports
hereunder, to give notice of any such material replacement or modification to
the Trustee.
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(p) BUSINESS DAYS. No later than December 1 of each year, the
Servicer shall furnish the Trustee with a list of days other than Saturday and
Sunday, on which the Servicer shall be closed during the immediately succeeding
year, except that with respect to the calendar year 1994, the Servicer shall
furnish such list to the Trustee on or before the Initial Closing Date.
(q) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Servicer
shall maintain and implement administrative and operating procedures (including,
without limitation, the ability to recreate records evidencing the Receivables
in the event of the destruction of the originals thereof), and keep and maintain
all documents, books, microfiche, computer records and other information
reasonably necessary or advisable for the collection of all the Receivables.
Such books, microfiche, and computer records shall reflect all customary facts
giving rise to the Receivables, all payments and credits with respect thereto,
and the computer records shall be clearly marked to show the interests of the
Trust in the Receivables. The Servicer shall hold on behalf of the Trust (to the
extent of its interest therein) any document evidencing or securing a Receivable
and any Contract related to such Receivable and necessary to the servicing of
such Receivable and the collection thereof in accordance with the terms of this
Agreement. Such holding by the Servicer shall be in trust and shall be deemed to
be the holding thereof by the Trustee for purposes of perfecting the Trust's
rights therein as provided in the UCC.
SECTION 3.05. REPORTS AND RECORDS FOR THE TRUSTEE. (a) DAILY
RECORDS. On each Business Day, the Servicer shall provide by telecopy to the
Trustee, and upon request to any Enhancement Provider and each Investor
Certificateholder the Daily Report and, to the extent not covered in the Daily
Report, a record setting forth (i) the Collections in respect of the Receivables
processed by the Servicer on the immediately preceding Business Day, (ii) the
amount of Eligible Receivables as of the close of business on the immediately
preceding Business Day and (iii) the Floating Alloca- tion Percentage for each
Series at the close of business on the immediately preceding Business Day.
(b) DETERMINATION DATE CERTIFICATE. On or before each
Determination Date with respect to each outstanding Series, the Servicer shall
deliver by telecopy to each Rating Agency and the Trustee and the Trustee shall
deliver to each Investor Certificate- holder a Determination Date Certificate
for such Determination Date substantially in the form set forth in the related
Supplement.
SECTION 3.06. ANNUAL CERTIFICATE OF SERVICER. On or before
March 31 of each calendar year, beginning with March 31, 1995, the Servicer
shall deliver to the Trustee, each Rating Agency and each Enhancement Provider
an Officer's Certificate, executed by the chief financial officer of the
Servicer, substantially in the form of Exhibit B hereto. A copy of each such
certificate will be sent to each Investor Certificateholder by the Trustee.
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SECTION 3.07. ANNUAL SERVICING REPORT OF INDEPENDENT PUBLIC
ACCOUNTANTS. (a) On or before March 31 of each calendar year, beginning with
March 31, 1995, the Servicer shall cause a firm of Independent Public
Accountants (who may also render other services to the Servicer or the
Transferor) to furnish a report (addressed to the Trustee) to the Trustee, the
Servicer, each Rating Agency and each Enhancement Provider substantially to the
effect that (i) such accountants have examined certain documents and records
relating to the servicing of Receivables under this Agreement, compared the
information contained in the Servicer's certificates delivered pursuant to
Section 3.05(b) during the period covered by such report with such documents and
records and that, on the basis of such examination, and subject to such
limitations and qualifications as may be reasonably set forth in such report,
such accountants are of the opinion that the servicing has been conducted
substantially in compliance with the terms and conditions as set forth in
Articles III and IV of this Agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
statement and (ii) such accountants have compared the mathematical calculations
of each amount set forth in the Servicer's certificates delivered pursuant to
Section 3.05(b) during the period covered by such report with the Servicer's
computer reports which were the source of such amounts and that on the basis of
such comparison, such accountants are of the opinion that such amounts are in
agreement, except for such exceptions as they believe to be immaterial and such
other exceptions as shall be set forth in such statement. The Trustee will send
a copy of each such report to each Investor Certificateholder.
(b) As soon as practicable and in any event within 120 days after the
close of each of its fiscal years, the Servicer and the Transferor shall deliver
to each Rating Agency their annual audited financial statements (including
balance sheets as of the end of such period, related revenue and expense
statements, and a statement of cash flows) certified by Independent Public
Accountants and prepared in accordance with generally accepted accounting
principles; PROVIDED, that the financial statements of the Transferor and the
Servicer will appear as a part of the consolidated annual audited financial
statements of the ultimate parent of the Servicer and the Transferor. Only the
consolidated financial statements of the ultimate parent of the Transferor and
Servicer will be audited. In addition, the Servicer shall deliver its unaudited
annual and quarterly financial statements in the form delivered to its board of
directors.
SECTION 3.08. TAX AND USURY TREATMENT. The Transferor has
entered into this Agreement, and the Investor Certificates have been (or will
be) issued to and acquired by the Investor Certificateholders, with the
intention that, for federal, state, foreign and local income and franchise tax
and usury law purposes, the Investor Certificates will be indebtedness of the
Transferor (or, if so provided in a Supplement, as an interest in
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a partnership) secured by the Receivables. The Transferor, by entering into this
Agreement, and each Certificateholder, by the acceptance of its Certificate,
agree to treat the Certificates for purposes of federal, state and local income
and franchise taxes and for any other tax imposed on or measured by income and
usury law purposes as indebtedness of the Transferor. In accordance with the
foregoing, the Transferor agrees that it will report its income for such
federal, state, foreign and local income or franchise taxes, or for purposes of
any other taxes on or measured by income, on the basis that it is the owner of
the Receivables. Furthermore the Trustee hereby agrees to treat the Trust as a
security device only, and shall not file tax returns or obtain an employer
identification number on behalf of the Trust (except as may be required as a
result of changes in law).
SECTION 3.09. NOTICES TO W-P STEEL. In the event that W-P
Steel is no longer acting as Servicer, any Successor Servicer shall deliver or
make available to W-P Steel and the Transferor each certificate and report
required to be delivered thereafter pursuant to Sections 3.05(b), 3.06 and 3.07.
SECTION 3.10. ADJUSTMENTS. If the Servicer makes a mistake
with respect to the amount of any Collection and deposits or pays an amount that
is less than or more than the actual amount of such Collection, the Servicer
shall appropriately adjust the amount subsequently deposited into the Trustee's
Account or Transferor's Account or paid to reflect such mistake and send written
notice thereof to the Trustee. Any Receivable in respect of which a dishonored
check is received shall be deemed not to have been paid.
SECTION 3.11. SECURITIES AND EXCHANGE COMMISSION FILINGS. For
so long as W-P Steel is the Servicer, the Servicer shall deliver to the Trustee
copies of each report of WHX Corporation or any of its Affiliates filed with the
Securities and Exchange Commission on Forms 10-K and 10-Q promptly after any
such filing has been made.
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ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01. RIGHTS OF CERTIFICATEHOLDERS. (a) The Investor
Certificates shall represent fractional undivided beneficial interests in the
Trust (with respect to each Series, the "Certificateholders' Interest"), which,
shall consist of the right to receive, to the extent necessary to make the
required payments with respect to the Investor Certificates of such Series at
the times and in the amounts specified in the related Supplement, the portion of
Collections allocable to Investor Certificateholders of such Series pursuant to
this Agreement and the related Supplement from funds on deposit in the
Concentration Account allocable to Certificateholders of such Series and funds
on deposit in any related Series Account and funds available pursuant to any
related Enhancement (collectively with respect to all Series, the "Aggregate
Certificateholders' Interest"), it being understood that the Investor
Certificates of any Series or Class shall not represent any interest in any
Series Account or Enhancement for the benefit of any other Series or Class. The
Transferor Certificate shall represent the fractional undivided beneficial
interest in the remainder of the Trust Assets not allocated pursuant to this
Agreement or any Supplement to the Aggregate Certificateholders' Interest,
including the right to receive Collections with respect to the Receivables and
other amounts at the times and in the amounts specified in this Agreement or in
any Supplement to be paid to the Holder of the Transferor Certificate (the
"Transferor Interest"); provided, however, that the Transferor Certificate shall
not represent any interest in the Concentration Account, any Series Account or
any Enhancement, except as specifically provided in this Agreement or any
Supplement.
(b) The Floating Allocation Percentage for each Series, which
is the percentage that determines the portion of the Aggregate
Certificateholders' Interest allocable to such Series, and the Transferor
Percentage, which is the percentage that determines the Transferor Interest,
shall be initially computed by the Servicer as of the opening of business of the
Servicer on the Closing Date. Thereafter until the commencement of the
Amortization Period or Partial Amortization Period, the Floating Allocation
Percentage for each Series and the Transferor Percentage, and through the
recomputations thereof the Certificateholders' Interest for each Series and the
Transferor Interest, shall be automatically recomputed by the Servicer as of the
close of business of the Servicer on each Business Day. Each of the
Certificateholders' Interests, the Floating Allocation Percentage for each
Series, the Transferor Interest and the Transferor Percentage (i) shall remain
constant from the time as of which any such computation or recomputation is made
until the
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time as of which the next such recomputation, if any, shall be made and (ii) as
computed as of the close of business of the Servicer on the Business Day
immediately preceding the commencement of the Amortization Period or Partial
Amortization Period, shall remain constant at all times during the Amortization
Period or a Partial Amortization Period.
SECTION 4.02. ESTABLISHMENT OF WHEELING-PITTSBURGH COLLECTION
ACCOUNTS AND CONCENTRATION ACCOUNT. (a) On or prior to the Closing Date, the
Servicer, for the benefit of the Certificateholders, shall establish and
maintain or cause to be established and maintained in the name of the Trustee,
on behalf of the Trust, with an Eligible Institution a segregated trust account
accessible by the Trustee (such account being the "Concentration Account" and
such institution holding such account being the "Concentration Account Bank"),
such account bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders. The Trustee shall
possess all right, title and interest in and to all funds from time to time on
deposit in the Concentration Account and in all proceeds thereof. The
Concentration Account shall be under the sole dominion and control of the
Trustee for the benefit of the Certificateholders. Except as expressly provided
in this Agreement, the Servicer agrees that it shall have no right of setoff or
banker's lien against, and no right to otherwise deduct from, any funds held in
the Concentration Account for any amount owed to it by the Trustee, the Trust or
any Certificateholder. The Servicer shall cause to be deposited Collections into
the Concentration Account by the close of business on the day of receipt thereof
as available funds in a Wheeling-Pittsburgh Collection Account. W-P Steel will,
and will cause the other Originators to, deposit any Collections received by any
of them into a Wheeling-Pittsburgh Collection Account within one Business Day
following the Business Day on which such Collections are so received or, if such
day is not a Business Day, the Business Day following such day. Notwithstanding
the foregoing, if and to the extent that funds that are not Collections are
deposited into the Concentration Account, the Servicer may direct the Trustee to
withdraw such funds from the Concentration Account.
If, at any time, the institution holding the Concentration
Account ceases to be an Eligible Institution, the Servicer, upon actual
knowledge thereof, for the benefit of the Certificateholders, shall within 30
Business Days (i) establish a new Concentration Account meeting the conditions
specified above with an Eligible Institution, (ii) transfer any cash and/or any
investments held therein or with respect thereto to such new Concentration
Account and (iii) in the case of any new Concentration Account, deliver to all
Wheeling-Pittsburgh Collection Account Banks new Wheeling-Pittsburgh Collection
Account Notices (with copies thereof to the Trustee) referring to such new
Concentration Account, and from the date such new Concentration
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Account is established, it shall be the "Concentration Account." Pursuant to the
authority granted to the Servicer in Section 3.01, the Servicer shall have the
power to instruct the Trustee to make withdrawals and payments from the
Concentration Account for the purposes of carrying out the Servicer's or the
Trustee's duties specified in this Agreement.
Funds on deposit in the Concentration Account or, in the case
of funds on deposit on any Deposit Date or Distribution Date, funds required
pursuant to the applicable Supplement to be deposited to the Trustee's Account
or the Transferor's Account on such date, shall at the direction of the Servicer
be invested by the Trustee or the Eligible Institution maintaining such accounts
in Eligible Investments as instructed by the Servicer in writing, or by
telephone confirmed promptly in writing, (which may be a standing instruction)
(or if not so instructed, then invested by the Trustee or the Eligible
Institution maintaining such accounts in any Eligible Investments listed in
clause (a) of the definition of Eligible Investment in Section 1.01). All such
Eligible Investments shall be held by the Trustee or the Eligible Institution
maintaining such accounts for the benefit of the Certificateholders. Such funds
shall be invested in Eligible Investments that will mature so that such funds
will be available in amounts sufficient for the Servicer to make each
distributions required under the applicable Supplement on the Distribution Date
with respect to such Collection Period or the last day of an Interest Period if
such day is other than a Distribution Date. Funds deposited in the Concentration
Account on a Determination Date with respect to the next following Distribution
Date are not required to be invested overnight. On each Distribution Date, all
interest and other investment earnings (net of losses and investment expenses)
received on funds on deposit in the Concentration Account, to the extent such
investment income is not needed to pay the Certificateholders on such
Distribution Date, shall be paid to the Transferor, except as otherwise
specified in any Supplement. The Trustee is hereby authorized, unless otherwise
directed by the Servicer, to effect transactions in Eligible Investments through
a capital markets affiliate of the Trustee.
(b) On or prior to the Closing Date, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain or cause to be
established and maintained in the name of the Trustee, on behalf of the Trust,
with an Eligible Institution segregated accounts accessible by the Trustee (each
such account, a "Wheeling-Pittsburgh Collection Account") to which Collections,
are to be remitted directly by Obligors. The Wheeling-Pittsburgh Collection
Accounts shall be under the sole dominion and control of the Trustee for the
benefit of the Certificateholders; PROVIDED, HOWEVER, that each
Wheeling-Pittsburgh Collection Account shall be accessible by the Servicer for
the purpose of transferring Collections to the Concentration Account in the
manner set forth in Section 4.02(a). The name, location and
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account number of each Wheeling-Pittsburgh Collection Account is attached to
this Agreement on Schedule I attached hereto. Each Wheeling-Pittsburgh
Collection Account shall be maintained with documentation and instructions in
form and substance satisfactory to the Trustee. Such documentation shall
provide, among other things, that available amounts shall be promptly
transferred to the Concentration Account. W-P Steel shall not without the prior
written consent of the Trustee (i) change any Wheeling-Pittsburgh Collection
Account, or establish any additional Wheeling- Pittsburgh Collection Account or
(ii) change such instructions or documentation at any time so long as the
Trustee has any interest in the Receivables.
(c) W-P Steel hereby agrees and acknowledges that (i) W-P Steel has
executed and delivered to the Trustee a letter and executed acknowledgement
thereto substantially in the form of Exhibit C hereto, addressed to each banking
institution with which the Wheeling-Pittsburgh Collection Account is maintained
(each, a "Wheeling-Pittsburgh Collection Account Letter") and (ii) W-P Steel
shall execute and deliver a substantially similar Wheeling-Pittsburgh Collection
Account Letter prior to the establishment by W-P Steel of any additional or
alternative Wheeling-Pittsburgh Collection Account. W-P Steel hereby agrees, and
the Trustee hereby acknowledges, that such letter transfers all right, title and
interest in all monies, securities and instruments in each Wheeling-Pittsburgh
Collection Account to the Trustee. W-P Steel agrees to execute such further
documents and take such other actions as may be reasonably requested by the
Trustee in order to effect such transfer.
SECTION 4.03. ALLOCATION OF COLLECTIONS. Collections will be
allocated to each Series from and after the related Series Cut-Off Date as
specified in the related Supplement, and amounts so allocated to any Series will
not, except as specified in the related Supplement, be available to the Investor
Certifi- cateholders of any other Series. Allocations thereof between the
Certificateholders' Interest and the Transferor Interest, among the Series or to
any Enhancement Agreement and among the Classes in any Series or to any
Enhancement Provider shall be set forth in the related Supplement or
Supplements. If, on any day, the sum of the fixed allocation percentages and
floating allocation percentages, as applicable, for all outstanding Series
exceeds 100%, then the aggregate of the Investor Collections for all outstanding
Series shall be allocated pro rata among all outstanding Series on the basis of
the Series Allocation Percentage for each such Series; PROVIDED; HOWEVER, that
if on any day the amount of Investor Collections for any Series is not
sufficient to pay the full amount of interest due and payable on such day to the
Investor Certificateholders of each Series on such day, then the aggregate of
the Investor Collections for all outstanding Series shall be allocated pro rate
among all outstanding Series on the basis of a fraction, for each Series,
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the numerator of which is the Invested Amount of such Series and the denominator
of which is the Trust Invested Amount.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Distributions shall be made to, and reports shall be provided
to, Certificateholders as set forth in the applicable Supplement.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. THE CERTIFICATES. The Investor Certificates of
any Series or Class shall be issued in registered form and shall be in
substantially the form of Exhibit A to the applicable Supplement and shall upon
issue be executed and delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Section 6.02. The Investor
Certificates shall be issued in minimum denominations of $250,000 and in
integral multiples of $1,000 in excess thereof (except that one Certificate may
be issued in a denomination that includes any residual amount), and shall be
issued upon initial issuance as one or more Investor Certificates in an
aggregate original principal amount equal to the Initial Invested Amount. The
Transferor Certificate shall be a single certificate, substantially in the form
of Exhibit A hereto, and shall represent the entire Transferor Interest. Each
Certificate shall be executed by manual or facsimile signature on behalf of the
Transferor by the President, any Vice President, the Chief Administrative and
Credit Officer, Treasurer or the Secretary of the Transferor, or by any other
officer or assistant officer duly authorized to execute such Certificate on
behalf of the Trans- feror. Certificates bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Transferor shall not be rendered
invalid, notwithstanding that such individual ceased to be so authorized prior
to the authentication and delivery of such Certificates or does not hold such
office at the date of such Certificates. No Certificates shall be entitled to
any benefit under this Agreement or the applicable Supplement or be valid for
any purpose, unless there appears on such Certificate a certificate of
authentication in substantially the form provided for herein executed by or on
behalf of the Trustee by the manual signature of a duly authorized signatory,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 6.02. AUTHENTICATION OF CERTIFICATES. The Trustee
shall authenticate and deliver the Investor Certificates of each Series to, and
upon the written order of, the Transferor against payment to the Transferor of
the purchase price therefor. The Trustee shall authenticate and deliver the
Transferor Certificate to the Transferor simultaneously with its delivery of the
first Series of Investor Certificates to be issued hereunder. The Certificates
of any Series or Class shall be duly authenticated by or on behalf of the
Trustee, in authorized denominations equal to (in the aggregate) in the case of
the Investor Certificates, the Initial Invested Amount of such Class, and, in
the
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case of the Transferor Certificate, in the denomination equal to the
Transferor's Interest from time to time, and together evidencing the entire
ownership of the Trust.
SECTION 6.03. REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES. (a) The Trustee shall cause to be kept at its corporate trust
operations office in Columbus, Ohio, such office or agency to be maintained in
accordance with the provisions of Section 11.16 a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may prescribe,
a transfer agent and registrar (which may be the Trustee) (the "Transfer Agent
and Registrar") shall provide for the registration of the Certificates and of
transfers and exchanges of the Certificates as herein provided. The Transfer
Agent and Registrar shall initially be the Trustee, and any co-transfer agent
and co-registrar chosen by the Trustee and acceptable to the Servicer. Any
reference in this Agreement to the Transfer Agent and Registrar shall include
any co-transfer agent and co-registrar unless the context requires otherwise.
The Trustee shall be permitted to resign as Transfer Agent and
Registrar upon 30 days' (60 days' during an Amortization Period) written notice
to the Transferor and the Servicer; PROVIDED, HOWEVER, that such resignation
shall not be effective and the Trustee shall continue to perform its duties as
Transfer Agent and Registrar until the Servicer has appointed a successor
Transfer Agent and Registrar reasonably acceptable to the Transferor.
Upon surrender for registration of transfer of any Investor
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose, the Transferor shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Investor Certificates (of the same Series and
Class) in authorized denominations of like aggregate Undivided Fractional
Interests in the Aggregate Certificateholders' Interest.
At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates (of the same
Series and Class) of authorized denominations of like aggregate Undivided
Fractional Interests in the Certificate- holders' Interest, upon surrender of
the Investor Certificates to be exchanged at any such office or agency. Whenever
any Investor Certificates are so surrendered for exchange, the Transferor shall
execute, and the Trustee shall authenticate and deliver, the Investor
Certificates which the Certificateholder making the exchange is entitled to
receive.
Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the
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Trustee or the Transfer Agent and Registrar duly executed by the
Certificateholder thereof or his attorney-in-fact duly authorized in writing.
Each Holder must satisfy the transfer restrictions set forth in the
Certificates.
Each Investor Certificate shall be registered at all times as
herein provided, and any transfer or exchange of such Investor Certificate will
be valid for purposes hereunder only upon registration of such transfer or
exchange by the Trustee or the Transfer Agent and Registrar as provided herein.
Payments on any Distribution Date shall be made to Holders of record on the
immediately preceding Record Date.
No service charge shall be made for any registration of
transfer or exchange of Investor Certificates, but the Transfer Agent and
Registrar or any co-transfer agent and co-registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Investor Certificates.
All Investor Certificates surrendered for registration of
transfer or exchange, or for payment, shall be cancelled and disposed of in a
manner reasonably satisfactory to the Trustee.
(b) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Investor Certificates may be surrendered for
registration of transfer or exchange.
(c)(i) Notwithstanding any other provision of this Section
6.03, no registration of transfer of any Investor Certificate shall be made
unless the transferor or the transferee shall deliver, at its expense, to the
Transferor, the Servicer and the Trustee either (A) a representation letter,
substantially in the form attached as Exhibit D to this Pooling and Servicing
Agreement stating whether such transferee is a "benefit plan investor" as
defined in Section 2510.3-101(f)(2) of the Labor Regulations promulgated under
ERISA, or (B) if such transferee is an insurance company licensed to issue
contracts of insurance in any state, the information described in (c)(ii) below.
The Transfer Agent and Registrar will maintain, as a part of the Certificate
Register, a list of all Investor Certificates (or the portion of any thereof)
that are held by benefit plan investors on the basis of any representation
provided pursuant to the foregoing clause (A) or on the basis of any information
provided to the Transfer Agent and Registrar pursuant to the second sentence of
clause (ii) below. The Transfer Agent and Registrar will not register the
transfer of any Investor Certificate if, immediately after the registration of
transfer of such Investor Certificate, 25% or more of the outstanding principal
balance of the Investor Certificates of all Series are held by benefit plan
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investors. Notwithstanding anything else to the contrary herein, any purported
transfer of an Investor Certificate to a benefit plan investor in violation of
the preceding sentence shall be void and of no effect.
(ii) In the event that such transferee is an insurance company
licensed to issue contracts of insurance in any state, such transferee, in lieu
of such representation letter described in (c)(i)(A) above, may represent that
the source of funds from which its investment is to be made is a general account
of such insurance company.
SECTION 6.04. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate is surrendered to the Transfer
Agent and Registrar, or the Transfer Agent and Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Transfer Agent and Registrar, the Trustee, the
Transferor and W-P Steel such indemnity (provided, that a letter of indemnity
from (i) an insurance company or (ii) an institutional investor of investment
grade credit rating shall satisfy such requirement) as may be required by them
to save each of them harmless, then, in the absence of notice to the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Transferor
shall execute and the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and (in the case of any new Investor Certificate)
Undivided Fractional Interest. In connection with the issuance of any new
Certificate under this Section 6.04, the Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a sum sufficient
to pay any tax or other governmental charge that may be imposed in relation
thereto. Any duplicate Certificate issued pursuant to this Section 6.04 shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 6.05. PERSONS DEEMED OWNERS. At all times prior to due
presentation of a Certificate for registration of transfer, the Trustee, the
Paying Agent, the Transfer Agent and Registrar and any agent of any of them
shall treat the Person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to the
terms of the applicable Supplement and for all other purposes whatsoever and
neither the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any
agent of any of them shall be affected by any notice to the contrary.
Notwithstanding the foregoing, in determining whether the Holders of the
requisite Undivided Fractional Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Transferor, the Servicer or
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any Affiliate thereof shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which the Trustee knows to be so owned shall be so
disregarded. Certificates so owned which have been pledged in good faith shall
not be disregarded and may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Certificates and that the pledgee is not the Transferor, the Servicer or an
Affiliate thereof.
SECTION 6.06. APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make distributions to Investor Certificateholders, the Servicer and the
Trustee from the Trustee's Account pursuant to the applicable Supplement and
shall report the amounts of such distributions to the Trustee. Any Paying Agent
shall have the power, revocable by the Trustee, to withdraw funds from the
Trustee's Account for the purpose of making the distributions referred to above.
The Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be the Trustee, and any co-paying agent chosen by the
Trustee and acceptable to the Servicer. The Trustee shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Servicer. In the event that
the Trustee shall no longer be the Paying Agent, the Servicer shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Servicer shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Servicer to execute and deliver to the Trustee an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustee that, as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders, the Servicer or the Trustee in trust for the benefit of the
Certificateholders entitled thereto, the Servicer or the Trustee, respectively,
until such sums shall be paid to such Certificateholders, the Servicer or the
Trustee, respectively. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 11.01,
11.02, 11.03 and 11.05 shall apply to the Trustee also in its role as Paying
Agent, for so long as the Trustee shall act as Paying Agent. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 6.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Servicer,
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any Investor Certificateholder, the Transferor or the Paying Agent, within five
Business Days after receipt by the Trustee of a written request therefor from
the Servicer, the Transferor, any Investor Certificateholder or the Paying
Agent, respectively, a list of the names and addresses of the
Certificateholders.
Every Certificateholder, by receiving and holding a
Certificate, agrees that neither the Trustee, the Transfer Agent and Registrar,
the Transferor, the Servicer, W-P Steel, nor any of their respective agents,
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Certificateholders hereunder, regardless of
the sources from which such information was derived.
SECTION 6.08. AUTHENTICATING AGENT. (a) The Trustee may
appoint one or more authenticating agents with respect to the Certificates which
shall be authorized to act on behalf of the Trustee in authenticating the
Certificates in connection with the issuance, delivery, registration of
transfer, exchange or repayment of the Certificates. Whenever reference is made
in this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Transferor and the Servicer.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any power or any further act on the part of
the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Transferor. The Trustee
may at any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent and to the Transferor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time an authenticating agent shall cease to be acceptable to the Trustee or
the Transferor, the Trustee may promptly appoint a successor authenticating
agent. Any successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be appointed
unless acceptable to the Trustee and the Transferor.
(d) The Transferor agrees to pay to each authenticating agent
from time to time reasonable compensation for its services under this Section
6.08.
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(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.08,
the Certificates may have endorsed thereon, in lieu of or in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Certificates described in the Pooling and
Servicing Agreement.
-------------------------------
-------------------------------
as Authenticating Agent
for the Trustee
By:____________________________
Authorized Signer
SECTION 6.09. NEW ISSUANCES. (a) The Transferor may from time
to time direct the Trustee, on behalf of the Trust, to issue one or more new
Series of Investor Certificates pursuant to a Supplement. The Investor
Certificates of all outstanding Series shall be equally and ratably entitled as
provided herein to the benefits of this Agreement without preference, priority
or distinction, all in accordance with the terms and provisions of this
Agreement and the applicable Supplement except, with respect to any Series or
Class, as provided in the related Supplement.
(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto will execute and deliver a Supplement which will
specify the Principal Terms of such new Series. The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Trustee to issue the Investor Certificates of such
new Series and to execute and deliver the related Supplement is subject to the
satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding
the Series Issuance Date, the Transferor shall have given the Trustee,
the Servicer, each Rating Agency and any Enhancement Provider written
notice of such issuance and the Series Issuance Date;
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(ii) the Transferor shall have delivered to the Trustee the related
Supplement, in form satisfactory to the Trustee, executed by each party
hereto other than the Trustee;
(iii) the Transferor shall have delivered to the Trustee any related
Enhancement Agreement executed by each party hereto other than the
Trustee;
(iv) each Rating Agency shall have notified the Transferor, the
Servicer, the Trustee and any Enhancement Provider in writing that the
issuance of such new Series of Investor Certificates, other than the
Series 1994-2 Certificates (if the Series 1994-2 Certificates are
issued within ninety days of the Initial Closing Date), will not result
in a reduction or withdrawal of the rating of any outstanding Series or
Class with respect to which it is a Rating Agency;
(v) such issuance will not result in the occurrence of an Early
Amortization Event and the Transferor shall have delivered to the
Trustee and any Enhancement Provider an Officer's Certificate, dated
the Series Issuance Date (upon which the Trustee may conclusively
rely), to the effect that the Transferor reasonably believes that such
issuance will not result in the occurrence of an Early Amortization
Event and is not reasonably expected to result in the occurrence of an
Early Amortization Event at any time in the future;
(vi) the Transferor shall have delivered to the Trustee and any
Enhancement Provider an Opinion of Counsel to the effect that the
issuance of the Investor Certificates of such Series (A) has been, or
need not be, registered under the Act and will not result in the
requirement that any other Series of Investor Certificates not
registered under the Act be so registered (unless the Transferor has
elected, in its sole discretion, to register such Certificates), and
(B) will not result in the Trust becoming subject to registration as an
investment company under the Investment Company Act and (C) will not
require this Agreement or the related Supplement to be qualified under
the Trust Indenture Act of 1939, as amended;
(vii) the Transferor shall have delivered to the Trustee a Tax
Opinion, dated the Series Issuance Date, with respect to such issuance;
and
(viii) such issuance will not result in the aggregate of the
Floating Allocation Percentages for all outstanding Series (after
giving effect to such new issuance) exceeding 100%.
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Upon satisfaction of the above conditions, the Trustee shall execute the
Supplement and the Transferor shall execute and deliver the Investor
Certificates of such Series for authentication and redelivery to or upon the
order of the Transferor. Notwithstanding the provisions of this Section 6.09(b),
prior to the execution of any Supplement, the Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
Supplement is authorized or permitted by this Agreement and any Supplement
related to any outstanding Series. The Trustee may, but shall not be obligated
to, enter into any such Supplement which adversely affects the Trustee's own
rights, duties or immunities under this Agreement.
(c) The Transferor may surrender the Transferor Certificate to the
Trustee in exchange for a newly issued Transferor Certificate and a second
certificate (a "Supplemental Certificate"), the terms of which shall be subject
to Section 13.01 hereof to the extent that it amends any of the terms of this
Agreement), to be delivered to or upon the order of the Transferor (or the
holder of a Supplemental Certificate, in the case of the transfer or exchange
thereof, as provided below), upon satisfaction of the following conditions:
(i) the Transferor shall have delivered to the Trustee an
Officer's Certificate certifying that the result obtained by
multiplying (x) an amount equal to the excess of the Net Receivables
Balance over the Trust Invested Amount by (y) the percentage equivalent
of the portion of the Transferor Interest represented by the Transferor
Certificate, shall not be less than 2% of the aggregate balance of all
Receivables owned by the Trust, in each case as of the date of, and
after giving effect to, such exchange;
(ii) each Rating Agency Condition shall have been satisfied
with respect such exchange (or transfer or exchange as provided below);
and
(iii) the Transferor shall have delivered to the Trustee, any
Agent and any Enhancement Provider a Tax Opinion, date the date of such
exchange (or transfer or exchange as provided below), with respect
thereto.
The Transferor Certificate will at all times be beneficially owned by
the Transferor. Any Supplemental Certificate may be transferred or exchanged
only upon satisfaction of the conditions set forth in clauses (ii) and (iii)
above.
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ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
SECTION 7.01. OBLIGATIONS NOT ASSIGNABLE. The obligations of
the Transferor hereunder shall not be assignable nor shall any Person succeed to
the obligations of the Transferor hereunder.
SECTION 7.02. LIMITATIONS ON LIABILITY. None of the directors,
officers, employees or agents of the Transferor, past, present or future, shall
be under any liability to the Trust, the Trustee, the Certificateholders or any
other Person for any action taken or for refraining from the taking of any
action in such capacities pursuant to this Agreement or for any obligation or
covenant under this Agreement; PROVIDED, HOWEVER, that this provision shall not
protect any such Person against any liability which would otherwise be imposed
by reason of willful misconduct or bad faith, in the performance by such Person
of such Person's duties or the reckless disregard by such Person of any of his,
her or its obligations and duties hereunder. The Transferor and any director,
officer, employee or agent of the Transferor may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
(other than the Transferor or any Affiliate thereof) respecting any matters
arising hereunder.
SECTION 7.03. INDEMNIFICATION OF THE TRUSTEE, THE TRUST AND
THE INVESTOR CERTIFICATEHOLDERS. Without limiting any other rights which the
Trustee, the Trust or any Investor Certificateholder (each, an "Indemnified
Party") may have hereunder or under applicable law, the Transferor hereby agrees
to indemnify each Indemnified Party from and against any and all claims, losses
and liabilities (including reasonable attorneys' fees and other reasonable fees
as permitted herein, as and when incurred) (all of the foregoing being
collectively referred to as "Indemnified Amounts") arising out of or resulting
from this Agreement, the activities of the Trust or the Trustee in connection
herewith, the Transferor's use of proceeds of Transfers of Receivables or
reinvestments of Collections, the interest conveyed hereunder in Trust Assets,
or in respect of any Receivable or the Receivables Purchase Agreement,
excluding, however, (a) Indemnified Amounts to the extent resulting from willful
misconduct, bad faith, gross negligence, the reckless disregard by such
Indemnified Party of any of his, her or its obligations and duties or breach of
fiduciary duty on the part of such Indemnified Party, (b) recourse for
uncollectible Receivables or (c) any income or franchise taxes (or any interest
or penalties with respect thereto) incurred by such Indemnified Party arising
out of or as a result of this Agreement or the interest conveyed hereunder in
Trust Assets or in respect of any Receivable or the Receivables Purchase
Agreement. Without
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limiting or being limited by the foregoing (other than clauses (a), (b) and
(c)), the Transferor shall pay on demand to each Indemnified Party any and all
amounts necessary to indemnify such Indemnified Party from and against any and
all Indemnified Amounts relating to or resulting from:
(i) reliance on any representation or warranty or
statement made or deemed made by the Transferor under or in connection
with this Agreement or the Receivables Purchase Agreement which shall
have been incorrect in any material respect when made;
(ii) the failure by the Transferor to comply with this
Agreement or the Receivables Purchase Agreement, or the failure by the
Transferor to comply with any applicable Requirement of Law with
respect to any Receivable or the related invoice or the Receivables
Purchase Agreement, or the nonconformity of any Receivable or the
related invoice or the Receivables Purchase Agreement with any
Requirement of Law;
(iii) the failure to vest in the Investor
Certificateholders an undivided fractional beneficial interest to the
extent of their respective Undivided Fractional Interests, in the
Receivables and the other Trust Assets, free and clear of any Lien;
(iv) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable or any other Trust Asset, whether at the time
of Transfer thereof or reinvestment of the proceeds thereof or at any
subsequent time;
(v) any investigation, litigation or proceeding
related to this Agreement or any Receivables Purchase Agreement or the
Trust or the use of proceeds of Transfers of Receivables or
reinvestments of proceeds thereof or the ownership of Trust Assets or
in respect of any Receivable or invoice, other than any litigation or
proceeding between W-P Steel or the Transferor or any Affiliate
thereof, on the one hand, and the Trustee or any Investor
Certificateholder or any Affiliate thereof, on the other hand, in which
W-P Steel or the Transferor or an Affiliate thereof prevails in a final
non-appealable judgment by a court of competent jurisdiction;
(vi) the commingling of Collections of Receivables at any
time with other funds prior to distribution under the applicable
Supplement; or
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(vii) any tax (other than any income or franchise tax, or
any interest or penalties with respect thereto) imposed by reason of
ownership of the Receivables or other Trust Assets by the Trustee.
In case any proceeding shall be instituted involving any
person in respect of which indemnity may be sought pursuant to this Section the
Indemnified Party shall promptly notify the Transferor in writing and the
Transferor, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Transferor may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Transferor and
the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Transferor and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interests between them. It is understood that
the Transferor shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such Indemnified Parties. It is
further understood that the Transferor shall not be liable to any Indemnified
Party until or unless such Indemnified Party provides timely notice to the
Transferor in writing of its request for indemnification.
Indemnification pursuant to this Section shall only be from
assets of the Transferor (and, as a result, any such indemnification may be
payable from any Trust Asset only if, to the extent that, and after, such Trust
Asset shall have been distributed to the Holder of the Transferor Certificate).
The agreement contained in this Section 7.03 shall survive the collection of all
Receivables, the termination of this Agreement and the payment of all amounts
otherwise payable hereunder.
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ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
SECTION 8.01. LIABILITY OF THE SERVICER. The Servicer shall be
liable under this Agreement only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
SECTION 8.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SERVICER. The Servicer shall not consolidate with or merge
into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(a) (i) the Person formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall be,
if the Servicer is not the surviving entity, a corporation organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and such corporation shall have expressly assumed, by an
agreement supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the performance of every covenant and
obligation of the Servicer hereunder; (ii) the Servicer shall have delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel each in form
reasonably satisfactory to the Trustee and stating that such consolidation,
merger, conveyance or transfer complies with this Section 8.02 and that all
conditions precedent herein provided for relating to such transaction have been
complied with; and (iii) each Rating Agency Condition shall have been satisfied;
and
(b) if the Servicer is W-P Steel, all conditions for such
merger or consolidation or conveyance or transfer, as the case may be, contained
in the Receivables Purchase Agreement shall be satisfied; and
(c) the corporation formed by such consolidation or into which
the Servicer is merged or which acquires by conveyance or transfer the
properties and assets of the Servicer substantially as an entirety shall have
all licenses and approvals of Governmental Authorities required to service the
Receivables, except to the extent the failure to have any such license would not
have a material adverse effect on its ability to perform the obligations of
Servicer hereunder.
SECTION 8.03. LIMITATIONS ON LIABILITY. None of the directors,
officers, employees or agents of the Servicer, past, present or future, shall be
under any liability to the Trust, the Trustee, the Certificateholders or any
other Person for any action taken or for refraining from the taking of any
action in
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such capacities pursuant to this Agreement or for any obligation or covenant
under this Agreement, it being understood that, with respect to the Servicer,
that this Agreement and the obligations created hereunder are solely the
corporate obligations of the Servicer; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability which
would otherwise be imposed by reason of willful misconduct, bad faith, gross
negligence or the reckless disregard by such Person of any of his, her or its
obligations and duties. The Servicer and any director or officer or employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person (other than the Servicer or
any Affiliate thereof) respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties as Servicer in accordance with this
Agreement and which in its reasonable judgment may involve it in any material
expense or liability.
SECTION 8.04. SERVICER INDEMNIFICATION. The Servicer shall
indemnify and hold harmless each Indemnified Party from and against Indemnified
Amounts suffered or sustained by reason of any breach by the Servicer of its
representations and warranties or obligations under this Agreement, excluding,
however, Indemnified Amounts to the extent resulting from (i) willful
misconduct, bad faith, gross negligence, the reckless disregard by such
Indemnified Party of any of his, her or its obligations and duties or breach of
fiduciary duty on the part of such Indemnified Party, (ii) recourse for
uncollectible Receivables or (iii) any income or franchise taxes (or any
interest or penalties with respect thereto) incurred by such Indemnified Party
arising out of or as a result of this Agreement or the interest conveyed
hereunder in Trust Assets or in respect of any Receivable or any Contract or the
Receivables Purchase Agreement. Indemnification pursuant to this Section shall
not be payable from the Trust Assets. The agreement contained in this Section
8.04 shall survive the collection of all Receivables, the termination of this
Agreement and the payment of all amounts otherwise due hereunder.
In case any proceeding shall be instituted involving any
person in respect of which indemnity may be sought pursuant to this Section the
Indemnified Party shall promptly notify the Servicer in writing and the Servicer
upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and any
others may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Servicer and the Indemnified
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Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Servicer and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Servicer shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such Indemnified Parties.
SECTION 8.05. THE SERVICER NOT TO RESIGN. The Servicer shall
not resign from the obligations and duties hereby imposed on it except upon
determination that (i) its performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make its performance of its duties hereunder
permissible under applicable law. Any determination permitting the resignation
of the Servicer shall be evidenced by an Opinion of Counsel who is not an
employee of the Servicer or any Affiliate of the Servicer with respect to clause
(i) above, delivered to, and in form reasonably satisfactory to, the Trustee. No
resignation shall become effective until the Trustee or a Successor Servicer
shall have assumed the responsibilities and obligations of the Servicer in
accordance with Section 10.02 hereof. If within 60 days of the date of the
determination that the Servicer may no longer act as Servicer hereunder for any
reason the Trustee has not appointed a Successor Servicer, the Trustee shall
serve as Successor Servicer hereunder. Notwithstanding the foregoing, the
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution that is an Eligible Servicer
(other than the Trustee) as the Successor Servicer hereunder.
SECTION 8.06. EXAMINATION OF RECORDS. The Servicer shall ▇▇▇▇
its computer records that the Receivables and other Trust Assets have been
Transferred to the Trustee, on behalf of the Trust, pursuant to this Agreement
for the benefit of the Certificateholders. The Servicer (and the Transferor)
shall, prior to the sale or transfer to a third party of any receivable held in
its custody, examine its records to determine that such receivable is not a
Receivable.
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ARTICLE IX
EARLY AMORTIZATION EVENTS
SECTION 9.01. EARLY AMORTIZATION EVENTS. If any one of the
following events shall occur:
(a) an Insolvency Event shall occur with respect to the
Transferor, the Servicer (provided the Servicer is W-P Steel or any Affiliate
thereof) or any Originator of 10% or greater of the Net Receivables Pool or the
Trust; or
(b) the SEC or other regulatory body reaches a final
determination that the Trust is an "investment company" within the meaning of
the Investment Company Act; or
(c) (i) any purchase of any Receivables by the Transferor
under the Receivables Purchase Agreement shall cease to create a valid sale,
transfer and assignment to the Transferor of all right, title and interest of
W-P Steel in and to such Receivables and the proceeds thereof; or (ii) any
Transfer of any Receivables on any date shall for any reason cease to create a
valid transfer and assignment to the Trust of all right, title and interest of
the Transferor in and to such Receivables and the proceeds thereof or, if such
Transfer does not constitute such a sale, transfer and assignment, cease to
create a valid and perfected first priority "security interest" (as defined in
the UCC of the jurisdiction the law of which governs the perfection of the
interest in such Receivables created hereunder) in such Receivables and the
proceeds thereof, or (iii) the Investor Certificates delivered hereunder shall
for any reason cease to evidence the transfer to the Investor Certificateholders
of, or the Investor Certificateholders shall otherwise cease to have, a
beneficial interest in a trust owning or having a perfected first priority
security interest in the Receivables and the other Trust Assets now existing and
hereafter arising and the proceeds thereof to the extent of their respective
Undivided Fractional Interests; or
(d) the Trust at any time receives a final determination that
it will be treated as an association taxable as a corporation for federal income
tax purposes;
then, in the case of any event as described herein, an "Early Amortization
Event" shall occur without any notice or other action on the part of the Trustee
or the Investor Certificateholders, immediately upon the occurrence of such
event and additional Receivables will not be transferred to the Trust. Promptly
and in any event within one Business Day after the Servicer becomes aware of any
Early Amortization Event, the Servicer shall notify the Trustee of the
occurrence of such Early Amortization Event. Promptly and in any event within
two
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Business Days after the Trustee becomes aware of any Early Amortization Event,
the Trustee shall notify in writing each Rating Agency of the occurrence of such
Early Amortization Event.
SECTION 9.02. ADDITIONAL RIGHTS UPON THE OCCURRENCE OF ANY
EARLY AMORTIZATION EVENT. (a) Upon the occurrence and during the continuance of
any Early Amortization Event, in addition to all other rights and remedies under
this Agreement or otherwise and all other rights and remedies provided under the
UCC of the applicable jurisdiction and other applicable laws (which rights shall
be cumulative), each of the Servicer, at the direction of the Trustee, and the
Trustee may exercise any and all rights and remedies of the Transferor under or
in connection with the Receivables Purchase Agreement, including, without
limitation, any and all rights of the Transferor to demand or otherwise require
payment of any amount under, or performance of any provision of, the Receivables
Purchase Agreement.
(b) If an Insolvency Event with respect to the Transferor
occurs, the Transferor shall immediately cease to transfer Receivables to the
Trust and shall promptly give written notice to the Trustee, who shall within
two Business Days forward such notice to the Certificateholders and the Servicer
of such event. Notwithstanding the above, Receivables transferred to the Trust
prior to the occurrence of such Insolvency Event and collections relating to
such Receivables shall continue to be part of the Trust. Unless, within 10
Business Days of the date of the notice provided for in the preceding paragraph,
the Trustee receives written instructions from the Majority in Interest of each
Series instructing the Trustee not to sell, dispose of or liquidate the
Receivables, the Trustee shall promptly proceed to sell, dispose of, or
otherwise liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms; PROVIDED, HOWEVER, that if the amount available
to the Trust for distribution after such sale, disposition or liquidation would
be less than the aggregate principal amount of the Investor Certificates plus
any unpaid Discount Amount thereon through the Distribution Date next succeeding
the date of such sale, the Trustee shall not proceed with such sale, disposition
or liquidation unless the Majority in Interest of each outstanding Series have
consented in writing thereto. The proceeds from such sale, disposition or
liquidation of the Receivables shall be treated as Collections on the
Receivables and shall be distributed in accordance with the terms of this
Agreement after being deposited in the Concentration Account.
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ARTICLE X
SERVICER DEFAULTS
SECTION 10.01. SERVICER DEFAULTS. If any one of the following
events (each being a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit, or, if applicable, to give instructions or notice to the Trustee to
make such payment, transfer or deposit, or to give notice to the Trustee as to
any action to be taken under any Enhancement Agreement, or any failure to
provide the Determination Date Certificate to the Trustee, on or before the date
occurring three Business Days, in the case of payments of principal and interest
to the Certificateholders, or five Business Days, in the case of any other
payment, after the date such payment, transfer or deposit or such instruction or
notice is required to be made or given, as the case may be, under the terms of
this Agreement;
(b) any failure by the Servicer duly to observe or perform in
any material respect any other covenant or agreement of the Servicer set forth
in this Agreement, which failure has a material adverse effect on the interest
of the Certificateholders and which continues unremedied for 30 days (or, with
respect to any covenant contained in Sections 3.04(a), 3.04(b), 3.04(h) and
3.04(i), continues unremedied for five days) after the earlier of (i) knowledge
of such failure by a Responsible Officer of the Servicer and (ii) the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee, or to the Servicer and the
Trustee by the Holders of Investor Certificates evidencing not less than 25% of
the Invested Amount of any Series; or the Servicer shall assign its duties under
this Agreement, except as permitted by Section 8.02;
(c) any representation, warranty or certification made by the
Servicer under or in connection with this Agreement, or in any certificate or
information delivered pursuant to or in connection with this Agreement, shall
prove to have been incorrect in any material respect when made and which has a
material adverse effect on the interests of the Certificateholders of any Series
and which material adverse effect continues for a period of 30 days (or, with
respect to any representation and warranty made in Sections 2.03(g) and 2.03(h),
continues for five days) after the earlier of (i) knowledge of such
incorrectness by a Responsible Officer of the Servicer and (ii) the date on
which written notice thereof, requiring the same to be remedied, shall have been
given (i) to the Servicer by the Trustee or (ii) to the Servicer and the Trustee
by any Investor Certificateholder (or, with respect to any such representation,
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warranty or certification that does not relate to all Series, the Majority in
Interest of all Series to which such representation, warranty or certification
relates); or
(d) an Insolvency Event shall occur with respect to the
Servicer;
then, as long as such Servicer Default shall not have been remedied and is
continuing, either the Trustee (unless otherwise directed by the Majority in
Interest of each Series) or the Majority in Interest of each Series, by notice
then given in writing to the Servicer (and to the Trustee if given by such
Investor Certificateholders) (each such notice being a "Termination Notice"),
may terminate all but not less than all the rights and obligations of the
Servicer as Servicer under this Agreement. The Trustee shall be deemed to have
knowledge of a Servicer Default if it has actual knowledge or if a Responsible
Officer has received written notice thereof.
The Majority in Interest of each Series may, on behalf of all
Certificateholders, waive any default by the Transferor or the Servicer in the
performance of their obligations hereunder and its consequences, except the
failure to make any distributions required to be made to Certificateholders or
to make any required deposits of any amounts to be so distributed. Upon any such
waiver of a past default, such default shall cease to exist, and any default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
After receipt by the Servicer of a Termination Notice, and on
the date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.02, all authority and power of the Servicer under this
Agreement shall pass to and be vested in such Successor Servicer (a "Service
Transfer"); and, without limitation, the Trustee is hereby authorized, empowered
and instructed (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute or
deliver such documents or instruments, and to do and accomplish all other acts
or things necessary or appropriate to effect the purposes of such Service
Transfer. The Servicer agrees to cooperate, at its expense, with the Trustee and
such Successor Servicer in (i) effecting the termination of the responsibilities
and rights of the Servicer to conduct servicing hereunder, including, without
limitation, the transfer to such Successor Servicer of all authority of the
Servicer to service the Receivables as provided under this Agreement, including
all authority over all Collections which shall on the date of such Service
Transfer be held by the Servicer for
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deposit to any Wheeling-Pittsburgh Collection Account, the Concentration
Account, the Trustee's Account or the Transferor's Account, or which have been
deposited by the Servicer to any Wheeling-Pittsburgh Collection Account, the
Concentration Account, or any other account, or which shall thereafter be
received with respect to the Receivables, and (ii) assisting the Successor
Servicer until all servicing activities have been transferred to such Successor
Servicer, such assistance to include, without limitation, (x) assisting any
accountants selected by the Successor Servicer to verify collection records and
reports made prior to the Service Transfer and (y) assisting to make the
computer systems of the Servicer and the Successor Servicer compatible to the
extent necessary to effect the Servicer Transfer. The Servicer shall, at its
expense, within five Business Days of such Service Transfer, (A) assemble such
documents, instruments and other records (including computer tapes and discs),
which evidence the Receivables and the other Trust Assets, and which are
necessary or desirable to collect the Receivables, and shall make the same
available to the Successor Servicer or the Trustee or its designee at a place
selected by the Successor Servicer or the Trustee and in such form as the
Successor Servicer or the Trustee may reasonably request, and (B) segregate all
cash, checks and other instruments received by it from time to time constituting
Collections of Receivables in a manner acceptable to the Successor Servicer and
the Trustee, and, promptly upon receipt, remit all such cash, checks and
instruments to the Successor Servicer or the Trustee or its designee.
At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and
at the Servicer's expense, give notice of the Trust's ownership of the
Receivables to the related Obligors and direct that payments be made
directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to
Obligors required in paragraph (1) above, the Trustee may direct the
Obligors of Receivables, or any of them, that payment of all amounts
payable under any such Receivables be made directly to the Trustee or
its designee;
(3) The Servicer shall, at its expense and at the
Trustee's or Successor Servicer's request as soon as possible but in
any event not more than three Business Days after such request, (x)
assemble such documents, instruments and other records (including,
without limitation, computer tapes and disks) which evidence the
Receivables and the other Trust Assets, and which are necessary or
desirable to collect the Receivables, and shall make the same available
to the Successor Servicer or the Trustee or its designee at a place
selected by the Successor Servicer or the Trustee
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and in such form as the Successor Servicer or the Trustee may
reasonably request, and (y) segregate all cash, checks and other
instruments received by it from time to time constituting Collections
of such Receivables in a manner acceptable to the Successor Servicer
and the Trustee and, promptly upon receipt, remit all such cash, checks
and instruments, duly endorsed or with duly executed instruments of
transfer, to the Trustee or its designee; and
(4) Each of the Transferor and each Certificate-
holder hereby authorizes the Trustee to take any and all steps in the
Transferor's name and on behalf of the Trans- feror and the
Certificateholders necessary or desirable, in the determination of the
Trustee, to collect all amounts due under any and all Receivables,
including, without limitation, endorsing the Transferor's name on
checks and other instruments representing Collections in respect of
such Receivables and enforcing such Receivables.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in Section 10.01(a) for a period of ten Business Days
after the applicable grace period, or under Section 10.01(b) for a period of
fifteen days after the applicable grace period, shall not constitute a Servicer
Default if such delay or failure could not have been prevented by the exercise
of reasonable diligence by the Servicer and such delay or failure was caused by
an act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods, union strikes, work stoppages or similar
causes. The preceding sentence shall not relieve the Servicer from using its
best efforts to perform its obligations in a timely manner in accordance with
the terms of this Agreement, and the Servicer shall provide the Trustee, the
Transferor, any Enhancement Provider and the Investor Certificateholders with an
Officer's Certificate giving prompt notice of such failure or delay by it,
together with a description of its efforts so to perform its obligations.
SECTION 10.02. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR
SERVICER. (a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.01 or upon a resignation by the Servicer pursuant to
Section 8.05, the Servicer shall continue to perform all servicing functions
under this Agreement until (i) in the case of any such receipt, the date
specified in such Termination Notice or otherwise specified by the Trustee in
writing or, if no such date is specified in such Termination Notice or otherwise
specified by the Trustee, until the earlier of a date agreed upon by the
Servicer and the Trustee or a date specified by the Trustee in a written notice
to the Servicer, and (ii) in the case of any such resignation, until the Trustee
or a Successor Servicer shall have assumed the
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responsibilities and obligations of the Servicer pursuant to this Section. The
Trustee shall as promptly as possible after the giving of a Termination Notice
or such a resignation appoint an Eligible Servicer as a successor servicer (the
"Successor Servicer"), subject to the consent of any Enhancement Providers and
if specified in any Series Supplement, the consent of the Majority in Interest
of the Certificateholders of such Series, which consent shall not be
unreasonably withheld, and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Trustee. In the event that a
Successor Servicer has not been appointed or has not accepted its appointment by
the earlier of 60 days after the date of such Termination Notice or at the time
when the Servicer ceases to act as Servicer, the Trustee without further action
shall automatically be appointed the Successor Servicer. The Trustee may
delegate any of its servicing obligations to an affiliate or agent in accordance
with the terms of this Agreement. Notwithstanding the foregoing, the Trustee
shall, if it is legally unable so to act as Successor Servicer, petition a court
of competent jurisdiction to appoint any established institution that is an
Eligible Servicer (other than the Trustee) as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to such Successor Servicer; PROVIDED, HOWEVER, that neither the
Trustee (solely in its capacity as such) nor any Successor Servicer shall be
deemed in default hereunder as a result of the predecessor Servicer's failure to
deliver necessary Trust Assets, documents, or records to the Trustee (solely in
its capacity as such) or to such Successor Servicer. Any Successor Servicer, by
its acceptance of its appointment, will automatically agree to be bound by the
terms and provisions of any Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee
will review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a Successor
Servicer for servicing compensation not in excess of the Servicing Fee, unless
the Trustee shall agree to pay the excess over the Servicing Fee of the
compensation of any such Successor Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically terminate upon termination of the Trust
pursuant to Section 12.01, and shall pass to and be vested in the Transferor
and, without limitation, the Transferor is hereby authorized and empowered to
execute and
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deliver, on behalf of the Successor Servicer, as attorney-in-fact or otherwise,
all documents and other instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of such transfer of
servicing rights. The Successor Servicer agrees to cooperate with the Transferor
in effecting the termination of the responsibilities and rights of the Successor
Servicer to conduct servicing of the Receivables. The Successor Servicer shall
transfer its electronic records relating to the Receivables to the Transferor in
such electronic form as the Transferor may reasonably request and shall transfer
all other records, correspondence and documents to the Transferor in the manner
and at such times and the Transferor shall reasonably request.
(e) Upon the effectiveness of the appointment of a Successor
Servicer, the Successor Servicer shall as soon as practicable upon demand
deliver to W-P Steel all documents, instruments and records in its possession
which evidence or relate to receivables owned by W-P Steel which are not Trust
Assets, and copies of documents, instruments and records in its possession which
evidence or relate to such receivables.
SECTION 10.03. NOTIFICATION TO CERTIFICATEHOLDERS. Promptly
and in any event within two Business Days after the Servicer becomes aware of
any Servicer Default, the Servicer shall give written notice thereof to a
Responsible Officer of the Trustee, and the Trustee shall promptly deliver a
copy of such notice to the Certificateholders and each Rating Agency. Upon any
termination or appointment of a Successor Servicer pursuant to this Article X,
the Trustee shall give prompt written notice thereof to the Transferor and the
Certificateholders.
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ARTICLE XI
THE TRUSTEE
SECTION 11.01. DUTIES OF TRUSTEE. (a) Other than while acting
in its capacity as Successor Servicer, the Trustee, prior to the occurrence of a
Servicer Default of which it has actual knowledge and after the curing of all
Servicer Defaults which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and no implied
duties or covenants shall be read into this Agreement against the Trustee. If a
Servicer Default to the actual knowledge of the Trustee has occurred (which has
not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Agreement and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) The Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement or any Supplement, shall
examine them to determine whether they substantially conform to the requirements
of this Agreement or any Supplement. The Trustee shall give prompt written
notice to the Certificateholders and each Rating Agency of any material lack of
conformity of any such instrument to the applicable requirements of this
Agreement or any Supplement discovered by the Trustee which would entitle a
specified percentage of the Investor Certificateholders to take any action
pursuant to this Agreement or any Supplement.
(c) Subject to Section 11.01(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct; PROVIDED, HOWEVER, that:
(i) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Majority in Interest
of each Series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement; and
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(iii) the Trustee shall not be charged with knowledge of
any failure by the Servicer to comply with the obligations of the
Servicer referred to in Section 10.01 unless a Responsible Officer of
the Trustee obtains actual knowledge of such failure or the Trustee
receives written notice of such failure from the Servicer or any
Holders of Investor Certificates evidencing not less than 25% of the
Invested Amount of any Series.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties hereunder or under any Supplement or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any obligations of the Servicer under this Agreement
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the interests of
the Trust in any Receivable now existing or hereafter created or to impair the
value of any Receivable now existing or hereafter created.
(f) Except as expressly provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust including, without
limitation, by (i) accepting any substitute obligation for a Receivable
initially Transferred to the Trust under Section 2.01, (ii) adding any other
investment, obligation or security to the Trust, or (iii) withdrawing from the
Trust any Receivable.
(g) In the event that the Paying Agent or the Transfer Agent
and Registrar shall fail to perform any obligation, duty or agreement in the
manner or on the day required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under this Agreement or under
any Supplement, the Trustee shall be obligated promptly upon its actual
knowledge thereof to perform such obligation, duty or agreement in the manner so
required.
(h) The Trustee shall have no responsibility or liability for
investment losses on Eligible Investments.
(i) Notwithstanding any other provision contained herein, the
Trustee is not acting as, and shall not be deemed to be, a fiduciary for any
Enhancement Provider in its capacity as
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such or as a Beneficiary, and the Trustee's sole responsibility with respect to
any such Enhancement Provider shall be to perform those duties with respect to
any such Enhancement Provider as are specifically set forth herein and no
implied duties or obligations shall be read into this Agreement against the
Trustee with respect to any such Enhancement Provider.
SECTION 11.02. CERTAIN MATTERS AFFECTING THE TRUSTEE. Except
as otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel and as a condition to
taking, suffering or omitting to take any action in any demand an Opinion of
Counsel and any advice or opinion of counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
opinion of counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; PROVIDED, HOWEVER, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of a Servicer Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and to
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
approval, bond or other paper
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or document, unless requested in writing so to do by Holders of Investor
Certificates evidencing more than 25% of any Series Invested Amount;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
(g) except as required by Section 11.01(b), the Trustee shall
not be required to make any initial or periodic examination of any documents or
records related to the Receivables for the purpose of establishing the presence
or absence of defects, the compliance by the Transferor with its representations
and warranties or for any other purpose; and
(h) nothing in this Agreement shall be construed to require
the Trustee to monitor the performance of the Servicer or act as a guarantor of
the Servicer's performance.
SECTION 11.03. TRUSTEE NOT LIABLE FOR RECITALS IN
CERTIFICATES. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates) or of any Receivable or related document. The Trustee shall
not be accountable for the use or application by the Transferor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Transferor in respect of the Receivables or
deposited in or withdrawn from any Wheeling- Pittsburgh Collection Account, the
Concentration Account, the Transferor's Account, the Trustee's Account or any
other account hereafter established to effectuate the transactions contemplated
by and in accordance with the terms of this Agreement and any Supplement.
SECTION 11.04. TRUSTEE MAY OWN CERTIFICATES. The Trustee in
its individual or any other capacity may become the owner or pledgee of Investor
Certificates and may otherwise deal, and transact banking business, with the
Servicer and the Transferor with the same rights as it would have if it were not
the Trustee.
SECTION 11.05. COMPENSATION; TRUSTEE'S EXPENSES. (a) The
Trustee shall be entitled to receive a monthly Trustee's fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust, such fee being
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the "Trustee's Fee") in respect of each Collection Period (or portion thereof)
from the Closing Date until the termination of the Amortization Period, payable
in arrears on each Distribution Date in an amount agreed upon in writing by the
Trustee and the Transferor. The Trustee's Fee shall be the aggregate of the
Series Trustee's Fees specified in the Supplements. The Trustee's Fee shall be
payable, FIRST, from Investor Collections pursuant to, and subject to the
priority of payment set forth in, Section 5.01 of the applicable Supplement and,
SECOND, to the extent not paid from Investor Collections, by the Transferor,
and, THIRD, to the extent not paid from Investor Collections or by the
Transferor, by the Servicer pursuant to Section 3.02(b).
(b) EXPENSES. The Transferor will pay or reimburse the Trustee
upon its request, and if the Transferor shall fail to do so, W-P Steel will so
pay or reimburse the Trustee (with a right to reimbursement from the Transferor)
pursuant to Section 3.02(b), for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Agreement or any Supplement or in connection with any
amendment hereto (including the reasonable fees and expenses of its agents, any
co-trustee and counsel and fees incurred in connection with a Servicer Default
or an Early Amortization Event) except any such expense, disbursement or advance
as may arise from its gross negligence or bad faith and except as provided in
the following sentence. If the Trustee is appointed Successor Servicer pursuant
to Section 10.02, the provision of this Section 11.05 shall not apply to
expenses, disbursements and advances made or incurred by the Trustee in its
capacity as Successor Servicer, which shall be paid, FIRST, out of the Servicing
Fee, and, SECOND, to the extent not paid out of the Servicing Fee, by the
Transferor pursuant to Section 3.02(b). The Transferor's and Servicer's covenant
and disbursements provided for in this Section 11.05 shall survive the
termination of this Agreement.
SECTION 11.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The
Trustee hereunder shall at all times be an Eligible Institution. If the Trustee
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purpose of this Section 11.06, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
SECTION 11.07. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the
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Transferor and the Servicer. Upon receiving such notice of resignation, the
Servicer shall promptly appoint a successor trustee acceptable to a majority in
interest of the Investor Certificateholders of each Series by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to resign
after written request therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee and promptly appoint a successor trustee
acceptable to a Majority in Interest of the Investor Certificate- holders of all
outstanding Series by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee.
(c) If at any time the Trustee shall fail to perform its
obligations under this Agreement, Investor Certificateholders representing the
Majority in Interest of all outstanding Series may remove the Trustee and direct
the Servicer to promptly appoint a successor trustee acceptable to a Majority in
Interest of the Investor Certificateholders of all outstanding Series by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
(d) Notwithstanding anything herein to the contrary, any
resignation or removal of the Trustee and appointment of successor trustee
pursuant to any of the provisions of this Section 11.07 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 11.08 hereof.
SECTION 11.08. SUCCESSOR TRUSTEE. (a) Any successor trustee
appointed as provided in Section 11.07 shall execute, acknowledge and deliver to
the Transferor, to the Servicer and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and
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obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver (with the expense
therefor payable out of the Servicing Fee, and by the Transferor and the
Servicer, pursuant to Sections 3.02(b) and 11.05(b)) to the successor trustee
all documents or copies thereof and statements held by it hereunder; and the
Transferor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06 hereof.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of such
succession hereunder to all Investor Certificateholders.
SECTION 11.09. MERGER OR CONSOLIDATION OF TRUSTEE. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 11.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Trustee shall have the power and
may execute and deliver all instruments to appoint one or more persons to act as
a co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 11.08 hereof.
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(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as Successor Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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SECTION 11.11. TAX RETURNS. No federal income tax return shall
be filed on behalf of the Trust unless either (i) the Trustee or the Servicer
shall receive an Opinion of Counsel based on a change in applicable law
occurring after the date hereof that the Code requires such a filing or (ii) the
Internal Revenue Service shall determine that the Trust is required to file such
a return. In the event the Trust shall be required to file tax returns, the
Servicer shall prepare or shall cause to be prepared any tax returns required to
be filed by the Trust and shall remit such returns to the Trustee for signature
at least five days before such returns are due to be filed; the Trustee shall
promptly sign such returns and deliver such returns after signature to the
Servicer and such returns shall be filed by the Servicer. The Servicer in
accordance with the Supplements shall also prepare or shall cause to be prepared
all tax information required by law to be distributed to Investor
Certificateholders and shall deliver such information to the Trustee at least
five days prior to the date it is required by law to be distributed to the
Certificateholders. The Trustee, upon request, will furnish the Servicer with
all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust, and shall upon
request, execute such returns. In no event shall the Trustee, the Servicer or
the Transferor be liable for any liabilities, costs or expenses of the Trust or
the Investor Certificateholders arising out of the application of any tax law,
including federal, state, foreign or local income or excise taxes or any other
tax imposed on or measured by income (or any interest penalty or addition with
respect thereto or arising from a failure to comply therewith).
SECTION 11.12. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF CERTIFICATES. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
SECTION 11.13. SUITS FOR ENFORCEMENT. (a) If a Servicer
Default shall occur and be continuing, the Trustee, in its discretion may,
subject to the provisions of Sections 11.01 and 11.14, proceed to protect and
enforce its rights and the rights of the Certificateholders under this Agreement
by suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any
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other legal, equitable or other remedy as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Trustee or the Certificateholders.
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Certificateholder in any such proceeding.
SECTION 11.14. RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE.
The Majority in Interest of each Series shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; PROVIDED,
HOWEVER, that subject to Section 11.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee after being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Certificateholders not parties to such direction; and, PROVIDED,
FURTHER, that nothing in this Agreement shall impair the right of the Trustee to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction of the Investor Certificateholders unless the Majority in
Interest of each Series shall have directed the Trustee to not take such action.
SECTION 11.15. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The
Trustee represents and warrants that:
(a) the Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America, and has the power to own its assets and to transact the
business in which it is presently engaged;
(b) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of this Agreement;
and
(c) this Agreement has been duly executed and delivered by the
Trustee.
SECTION 11.16. MAINTENANCE OF OFFICE OR AGENCY. The Trustee
will maintain at its expense in the Borough of Manhattan,
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The City of New York, an office or agency (the "Corporate Trust Office") where
notices and demands to or upon the Trustee in respect of the Certificates and
this Agreement may be served. The Trustee initially designates its office or
agency at Bank One, Columbus, NA, c/o First Chicago Trust Company, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, New York 10002 as such office. The
Trustee will give prompt written notice to the Servicer and to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
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ARTICLE XII
TERMINATION
SECTION 12.01. TERMINATION OF TRUST. The Trust and the
respective obligations and responsibilities of the Transferor, the Servicer and
the Trustee created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as hereinafter set forth) shall terminate, except
with respect to the duties described in Sections 3.02(b), 7.03, 8.04, 11.05 and
12.02(b), upon the earlier to occur of (i) December 31, 2014 and (ii) the day
following the Distribution Date on which the Invested Amount for each Series is
zero.
SECTION 12.02. FINAL DISTRIBUTION. (a) The Servicer shall give
the Trustee and the Trustee shall give each Certificateholder at least twenty
days' prior written notice of the date on which (i) the Trust is expected to
terminate in accordance with subsection 12.01 and (ii) the Certificateholders
may surrender their Certificates for payment of the final distribution on and
cancellation of such Certificates. Such notice shall be accompanied by an
Officer's Certificate setting forth the information specified in Section 3.06
covering the period during the then-current calendar year through the date of
such notice. Not later than five days after the Trustee shall receive such
notice, the Trustee shall mail notice to the Certificateholders specifying (i)
the date upon which such final distribution will be made upon presentation and
surrender of such Certificates at the office or offices therein designated, (ii)
the amount of any such final distribution and (iii) that the Distribution Date
otherwise applicable to such final distribution is not applicable, payments
being made only upon presentation and surrender of such Certificates at the
office or offices therein specified; PROVIDED, HOWEVER, that such presentation
and surrender shall not be required for a Certificateholder that is an insurance
company or institutional investor. Each such Certificateholder shall surrender
its Certificate to the Trustee following receipt of the final distribution
thereon. The Trustee shall give such notice to the Transfer Agent and Registrar
and the Paying Agent at the time such notice is given to the Certificateholders.
(b) Notwithstanding the Servicer's delivery to the Trustee, or
the Trustee's delivery to the Certificateholders, of the notices required under
Section 12.02(a), all funds then on deposit in the Concentration Account, any
Series Account, the Transferor's Account or the Trustee's Account shall continue
to be held in trust for the benefit of the Certificateholders, and the Paying
Agent or the Trustee shall pay such funds to the Certificateholders upon
surrender of their Certificates pursuant to, and subject to the priorities set
forth in, the applicable Supplement, as if such surrender date were on a
Distribution Date
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(and any excess shall be paid in accordance with the terms of any Enhancement
Agreement). In the event that all Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice from the Trustee, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds in the Trustee's Account (if such
Certificateholders are Investor Certificateholders) or the Transferor's Account
(if any such Certificateholder is the Holder of the Transferor Certificate) held
for the benefit of such Certificateholders. The Trustee and the Paying Agent
shall pay to the Transferor any monies held by them for the payment of principal
or interest that remains unclaimed for two years. After payment to the Trans-
feror, Investor Certificateholders entitled to the money must look to the
Transferor for payment as general creditors unless an applicable abandoned
property law designates another person.
SECTION 12.03. TRANSFEROR'S TERMINATION RIGHTS. Upon the
termination of the Trust pursuant to Section 12.01, the payment in full of all
amounts due to the Investor Certificate- holders, payment of Trustee's fees and
expenses and the surrender of the Transferor Certificate, the Trustee shall
assign and convey to the Holder of the Transferor Certificate or its designee,
without recourse, representation or warranty, all right, title and interest of
the Trust in and to the Receivables, whether then existing or thereafter
created, and all other Trust Assets, and all proceeds thereof except for amounts
held in any account by the Trustee or the Paying Agent pursuant to Section
12.02(b). The Trustee at the expense of the Transferor shall execute and deliver
such instruments of transfer and assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Transferor for execution
by the Trustee which are reasonably requested by the Transferor to vest in the
Transferor all right, title and interest which the Trust had in the Receivables
and all other Trust Assets.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. AMENDMENT; WAIVER OF EARLY AMORTIZATION EVENTS.
(a) This Agreement or any Supplement may be amended from time to time by the
Servicer, the Transferor and the Trustee without the consent of any of the
Investor Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or (iii) to add any other provisions with respect to matters or
questions arising under the Agreement or any Supplement which are not
inconsistent with the provisions of the Agreement or such Supplement; PROVIDED,
that any amendment pursuant to this clause (a) shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholders.
(b) This Agreement or any Supplement may be amended from time
to time by the Servicer, the Transferor and the Trustee, with the consent of the
Majority in Interest of each adversely affected Series, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, distributions to be made to
any Certificateholder or deposits of amounts to be so distributed or the amount
available under any Enhancement without the consent of such Certificateholder,
(ii) change the definition of or the manner of calculating the
Certificateholders' Interest or the Aggregate Certificateholders' Interest or
any Investor Certificateholder's interest therein without the consent of each
affected Investor Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each Investor
Certificateholder or (iv) cause any adverse tax effect for any Investor
Certificateholder without the consent of each affected Investor
Certificateholder. The Trustee may request an Officer's Certificate and Opinion
of Counsel with respect to an amendment entered into pursuant to this Section
13.01(b) concerning compliance with the requirements of this Agreement. Any
amendment to be effected pursuant to this paragraph shall be deemed to adversely
affect all outstanding Series, other than any Series with respect to which such
action shall not, as evidenced by an Opinion of Counsel (which counsel shall not
be an employee of, or counsel for, W-P Steel or the Transferor), addressed and
delivered to the Trustee, adversely affect the interests of any Investor
Certificateholder of such Series.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to Section 13.01(a)), the Trustee
shall furnish written notification of the
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substance of such amendment to each Investor Certificateholder and each
Enhancement Provider.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificate- holders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary,
no amendment may be made to this Agreement or any Supplement which would
adversely affect in any material respect the interests of any Enhancement
Provider without the consent of such Enhancement Provider.
(f) Any supplement executed in accordance with the provisions
of Section 6.09 shall not be considered an amendment to this Agreement for the
purposes of this Section.
(g) Prior to the execution of any amendment to this Agreement
or any Supplement, the Trustee and any Enhancement Provider shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee's own rights, duties or immunities under this Agreement, any Supplement
or otherwise.
SECTION 13.02. PROTECTION OF RIGHT, TITLE AND INTEREST TO
TRUST. (a) The Servicer shall cause this Agreement, all amendments hereto and
all financing statements and continuation statements and any other necessary
documents covering the Certificateholders' and the Trustee's right, title and
interest in and to the Trust to be promptly recorded, registered and filed, and
at all times to be kept recorded, registered and filed, all in such manner and
in such places as may be required by law to preserve and protect fully the
right, title and interest of the Certificateholders and the Trustee hereunder in
and to all property comprising the Trust. The Servicer shall deliver to the
Trustee file-stamped copies of, or filing receipts for, each document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Transferor shall cooperate fully with the
Servicer in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of Section 13.02(a).
(b) Within 30 days after the Transferor makes any change in
its name, identity or corporate structure which would
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make any financing statement or continuation statement filed in accordance with
the terms of this Agreement seriously misleading within the meaning of Section
9-402(7) (or any comparable provision) of the UCC as in effect in the
jurisdiction the law of which governs the perfection of the interest in the
Trust Assets created hereunder, the Transferor shall give the Trustee notice of
such change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's interest in the Trust Assets
and the proceeds thereof contemplated by Section 2.01 hereof.
(c) The Transferor and the Servicer will give the Trustee
prompt written notice of any relocation of any office from which it services
Receivables or keeps records concerning the Receivables or of its principal
executive office and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's interest in
the Receivables and the other Trust Assets and the proceeds thereof contemplated
by Section 2.01 hereof. The Transferor and the Servicer will at all times
maintain each office from which it services Receivables and its principal
executive offices within the United States of America.
SECTION 13.03. LIMITATION ON RIGHTS OF CERTIFICATE- HOLDERS.
(a) The death or incapacity of any Investor Certificateholder shall not operate
to terminate this Agreement or the Trust, nor shall such death or incapacity
entitle such Investor Certificateholders' legal representatives or heirs to
claim an accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have the right to vote (except
as expressly provided in this Agreement, including without limitation under
Section 11.14) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association other than for Federal, state or local income or franchise tax
purposes only, nor shall any Investor Certificateholder be under any liability
to any third person by reason of any action taken by the parties to this
Agreement pursuant to any provision hereof.
(c) No Investor Certificateholder shall have any right by
virtue of any provisions of this Agreement to file or otherwise institute any
suit, action or proceeding in equity or
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at law upon or under or with respect to this Agreement, unless such Investor
Certificateholder previously shall have made, and unless the Holders of Investor
Certificates evidencing more than 50% of the Trust Invested Amount shall have
made, a written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after such request and offer of indemnity, shall have failed to file or
otherwise refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted, by each
Certificateholder with every other Certificate- holder and the Trustee, that no
one or more Certificateholders shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the holders of any of the Investor
Certificates, or to obtain or seek to obtain priority over or preference to any
such Investor Certificate- holder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Investor Certificateholders. For the protection and enforcement
of the provisions of this Section 13.03, each and every Investor
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity. Notwithstanding any other provision of this
Pooling and Servicing Agreement, the Certificates or any Supplement, each
Investor Certificateholder shall have the right to receive the payments of all
amounts due hereunder, under the Certificates held by such Holder and under the
Supplement relating to the Series of Certificates held by such Holder and the
right to institute suit for the enforcement of any such payment without the
consent of the Trustee or any other Holder.
(d) By its acceptance of the Transferor Certificate, the
Holder thereof agrees that it will take no action with respect to such Holder's
rights under the Agreement that is inconsistent with, or adverse to, the
interests of the Investor Certificateholders.
SECTION 13.04. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(b) JURISDICTION. Each of the parties hereto hereby
irrevocably and unconditionally submits to the nonexclusive jurisdiction of 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
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arising out of or relating to this Agreement, 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 such New York State or,
to the extent permitted by law, in such federal court. 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.
(c) CONSENT TO SERVICE OF PROCESS. Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 13.05. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 13.05. NOTICES; PAYMENTS. (a) All demands, notices,
instructions, directions, requests, authorizations and communications
(collectively, "Notices") under this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered at, mailed by registered
mail, return receipt requested, or sent by facsimile transmission (i) in the
case of the Transferor, to Wheeling-Pittsburgh Funding, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, (ii) in the case of
the Servicer (if the Servicer is W-P Steel) to W-P Steel, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, (iii) in the case of the
Trustee, to Bank One, Columbus, NA, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, and (iv) in the case of
the Paying Agent or the Transfer Agent and Registrar, to Bank One, Columbus, NA,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, as to each party, at such other address or facsimile number as
shall be designated by such party in a written notice to each other party. If
the Servicer is not W-P Steel, notices shall be given to the Servicer at the
address designated by such Servicer, with a copy to W-P Steel at the address
designated above.
(b) Any notice required or permitted to be mailed to an
Investor Certificateholder shall be given by first-class mail, postage prepaid,
at the address of such Certificateholder as shown in the Certificate Register.
Notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
(c) If the Transferor is not the Holder of the Transferor
Certificate, the Holder of the Transferor Certificate shall be entitled to
receive all notices which the Investor
Certificateholders receive.
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SECTION 13.06. RULE 144A INFORMATION. For so long as any of
the Investor Certificates of any Series or Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Transferor, the Servicer
and any Enhancement Provider agree to cooperate with each other to provide to
each Investor Certificateholder of such Series or Class and to each prospective
purchaser of Investor Certificates designated by such an Investor
Certificateholder, upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act (or any successor provision).
SECTION 13.07. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other covenants, agreements, provisions or
terms of this Agreement or of the Certificates or rights of the
Certificateholders.
SECTION 13.08. ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, (i) this Agreement may not be assigned by the
Transferor, and (ii) except as provided in Section 8.02, this Agreement may not
be assigned by the Servicer without the prior consent of the Majority in
Interest of each Series.
SECTION 13.09. CERTIFICATES NONASSESSABLE AND FULLY PAID. It
is the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the interests
in the Trust represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever and that
Certificates upon authentication thereof by the Trustee pursuant to Section 6.02
are and shall be deemed fully paid.
SECTION 13.10. FURTHER ASSURANCES. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments and documents required or reasonably
requested by the Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 13.11. NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, the Servicer, the Trustee and the Transferor
shall not, prior to the date which is one year and one day after the termination
of this Agreement with
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respect to the Trust, acquiesce, petition or otherwise invoke or cause the Trust
to invoke the process of any Governmental Authority for the purpose of
commencing or sustaining a case against the Trust under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or any substantial part of its property or ordering the winding-up or
liquidation of the affairs of the Trust.
SECTION 13.12. NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of any Person, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 13.13. COUNTERPARTS. This Agreement may be executed in
two or more counterparts and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 13.14. THIRD-PARTY BENEFICIARIES. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and their respective successors and permitted assigns. Except
as otherwise provided in this Agreement, no other person will have any right or
obligation hereunder.
SECTION 13.15. ACTIONS BY CERTIFICATEHOLDERS. (a) Wherever in
this Agreement a provision is made that an action may be taken or a Notice given
by Investor Certificateholders, such action or Notice may be taken or given by
any Investor Certificateholder, unless such provision requires a specific
percentage of Investor Certificateholders.
(b) Any Notice, consent, waiver or other act by the Holder of
a Certificate shall bind such Holder and every subsequent Holder of such
Certificate and of any Certificate issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or omitted to be done by the Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
SECTION 13.16. MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement sets forth
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the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
SECTION 13.17. HEADINGS. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 13.18. CONSTRUCTION OF AGREEMENT. The Transferor
hereby grants to the Trustee a security interest in all of the Transferor's
right, title and interest in, to and under the Receivables now existing and
hereafter created, all monies due or to become due and all amounts received with
respect thereto, and all other Trust Assets, and all "proceeds" thereof, to
secure all the Transferor's and Servicer's obligations hereunder, including,
without limitation, the Transferor's obligation to sell or transfer to the Trust
all Receivables existing on the date hereof or hereafter created and transferred
to the Trans- feror from time to time under the Receivables Purchase Agreement.
This Agreement shall constitute a security agreement under applicable law.
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IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
WHEELING-PITTSBURGH FUNDING, INC.,
Transferor
By:_______________________________
Name:
Title:
WHEELING-PITTSBURGH STEEL
CORPORATION, Servicer
By:________________________________
Name:
Title:
BANK ONE, COLUMBUS, NA,
Trustee
By:________________________________
Name:
Authorized Signer:
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EXHIBIT A
FORM OF TRANSFEROR CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION PROVISIONS OF SUCH ACT.
WHEELING-PITTSBURGH TRADE RECEIVABLES MASTER TRUST
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN UNDIVIDED INTEREST
IN CERTAIN ASSETS OF THE WHEELING-PITTSBURGH TRADE RECEIVABLES
MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by Wheeling-Pittsburgh Steel Corporation, Pittsburgh-▇▇▇▇▇▇▇▇
Corporation and Wheeling Construction Products, Inc. (the "Originators") and any
other entities designated in the future as "Originators" pursuant to the terms
of the Pooling and Servicing Agreement, and transferred by the other Originators
to Wheeling-Pittsburgh Steel Corporation ("W-P Steel") and purchased by
Wheeling-Pittsburgh Funding, Inc. (the "Transferor"), which in turn transfers
and assigns such receivables to the Wheeling-Pittsburgh Trade Receivables Master
Trust. This certificate does not represent any recourse obligation of, and is
not guaranteed by, the Transferor, W-P Steel or any Affiliate of any of them.
This certifies that ___________________________ is the
registered owner of the fractional undivided interest (the "Transferor
Interest") in the assets of the Wheeling-Pittsburgh Trade Receivables Master
Trust (the "Trust") not represented by the Investor Certificates pursuant to
that certain Pooling and Servicing Agreement, dated August 1, 1994 (as
supplemented or modified, the "Agreement"), by and among the Transferor, W-P
Steel, as Servicer, and Bank One, Columbus, NA (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings ascribed
to them in the Agreement.
The corpus of the Trust consists of (i) a portfolio of
receivables meeting certain eligibility requirements (the
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"Receivables") identified under the Agreement from time to time, (ii) funds
collected or to be collected from Obligors in respect of the Receivables, (iii)
all funds which are from time to time on deposit in the Concentration Account
and any other account or accounts held for the benefit of Certificateholders,
and (iv) all other assets and interests constituting the Trust Assets.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement. Although a summary of certain
provisions of the Agreement is set forth below, this Certificate does not
purport to summarize the Agreement, is qualified in its entirety by the terms
and provisions of the Agreement and reference is made to the Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee, the Servicer and the other parties bound by the Agreement.
This Certificate is the Transferor Certificate, which
represents an interest in the Trust, including the right to receive Collections
and other amounts at the times and in the amounts specified in the Agreement to
be paid to the holder of the Transferor Certificate. In addition to this
Certificate, Investor Certificates are being issued to investors pursuant to the
Agreement, which will represent the interests of Investor Certificateholders in
the Trust. This Certificate shall not represent any interest in the
Concentration Account or other account or Trust Asset except as provided in the
Agreement.
Subject to certain conditions in the Agreement, the
obligations created by the Agreement and the Trust created thereby shall
terminate upon the earliest of (i) December 31, 2014, and (ii) the day following
the Distribution Date on which the Invested Amount for each Series is zero.
By its acceptance of this Transferor Certificate, the Holder
hereof agrees that it will take no action with respect to such Holder's rights
under the Agreement that is inconsistent with, or adverse to, the interests of
the Investor Certificateholders as provided under the Agreement.
Upon termination of the Trust pursuant to Article XII of the
Agreement, subject to the provisions of the Agreement, payment in full of the
Investor Certificateholders and the surrender of this Certificate, the Trustee
shall assign and convey to the Holder of the Transferor Certificate (without
recourse, representation or warranty) all right, title and interest of the Trust
in the Trust Assets, whether then existing or thereafter created, including the
Receivables and all proceeds thereof, except for amounts held by the Trustee
pursuant to subsection 12.02(b) of the Agreement. The Trustee shall execute and
deliver such instruments of transfer and assignment, in each
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case without recourse, as shall be reasonably requested by the Transferor to
vest in the Transferor all right, title and interest which the Trust has in the
Trust Assets.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Transferor has caused this Certificate
to be duly executed.
Dated:
WHEELING-PITTSBURGH FUNDING, INC.
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the
within-mentioned Pooling and Servicing Agreement.
Dated:_______________, 1994
BANK ONE, COLUMBUS, NA
not in its individual capacity but
solely as Trustee
By:_____________________________ OR
Authorized Signer
----------------------------
Authenticating Agent for the
Trustee
By:_________________________
Authorized Signer
A-3
EXHIBIT B
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before _________ of each
calendar year beginning with ________, 1995, pursuant to
Section 3.06 of the Pooling and Servicing Agreement)
Wheeling-Pittsburgh Steel Corporation
---------------------------------------
WHEELING-PITTSBURGH TRADE RECEIVABLES MASTER TRUST
---------------------------------------
The undersigned, chief financial officer of Wheeling- Pittsburgh Steel
Corporation ("W-P Steel"), as Servicer, pursuant to the Pooling and Servicing
Agreement, dated August 1, 1994 (as amended and supplemented, the "Agreement"),
by and among Wheeling-Pittsburgh Funding Inc., as transferor, W-P Steel, as
servicer, and Bank One, Columbus, NA, as trustee, do hereby certify that:
1. W-P Steel is, as of the date hereof, the Servicer under the
Agreement.
2. The undersigned chief financial officer is duly authorized
pursuant to the Agreement to execute and deliver this Certificate to
the Trustee, each Rating Agency and any Enhancement Providers.
3. A review of the activities of the Servicer during the
calendar year ended December 31, ____, and of its performance under the
Agreement was conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects all of its obligations
under the Agreement throughout such year and no material default in the
performance of such obligations has occurred or is continuing except as
set forth in paragraph 5 below.
5. The following is a description of each material default in
the performance of the Servicer's obligations under the provisions of
the Agreement known to me to have been made by the Servicer during the
calendar year ended December 31, ____, which sets forth in detail the
(a) nature
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of such material default, (b) the action taken by the Servicer, if any,
to remedy each such material default and (c) the current status of each
such default: [If applicable, insert "None."]
Capitalized terms used but not defined herein are used as defined in
the Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this ____ day of ___________, ____.
By:_____________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF WHEELING-PITTSBURGH COLLECTION ACCOUNT LETTER
[Wheeling-Pittsburgh Collection Account Bank]
Re: Lock Box No.
Lock Box Account No.
Ladies and Gentlemen:
We hereby notify you that we have transferred exclusive ownership and
control of our lock-box number (the "Lock-Box") and the corresponding lock-box
account no. (the "Lock-Box Account") maintained with [Wheeling-Pittsburgh
Collection Account Bank] to _______________________________, as trustee for
Wheeling-Pittsburgh Trade Receivables Master Trust, established pursuant to a
pooling and servicing agreement, dated August 1, 1994, among Wheeling-Pittsburgh
Funding, Inc., as transferror, Wheeling-Pittsburgh Steel Corporation ("W-P
Steel") as Servicer, and Bank One, Columbus, NA, as trustee (the "Trustee").
We hereby irrevocably instruct you to collect the monies, checks,
instruments and other items of payment mailed to the Lock-Box and deposit into
the Lock-Box Account all monies, checks, instruments and other items of payment
(unless otherwise instructed by the Trustee), and to make all payments to be
made by you out of or in connection with the Lock-Box Account directly to
Wheeling-Pittsburgh Trade Receivables Master Trust Concentration Account,
account no. ▇▇▇▇▇▇▇▇▇▇, such account being in the name of the Trustee at Bank
One, Columbus, NA, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention
Corporate Trust Administration, for the account of the Trustee. We hereby notify
you that we will from time to time access the Lock-Box Account for the sole
purpose of facilitating the transfer of funds therein to the Wheeling-Pittsburgh
Trade Receivables Master Trust Concentration Account pursuant to standing
instructions from the Trustee or if so directed by the Trustee. Anything in this
letter agreement to the contrary notwithstanding, we and the Trustee understand
and agree that you will make the proceeds of items deposited into the Lock-Box
account available for
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withdrawal in accordance with your applicable availability schedule(s) in effect
from time to time.
We also hereby notify you that the Trustee shall be irrevocably
entitled to exercise any and all rights in respect of or in connection with the
Lock-Box and the Lock-Box Account, including without limitation, the right to
specify when payments are to be made out of or in connection with the Lock-Box
and the Lock-Box Account. The monies, checks, instruments and other items of
payment mailed to the Lock-Box and the funds deposited into the Lock-Box Account
will not be subject to deduction, set off, banker's lien, or any other right in
favor of any person other than the Trustee; PROVIDED, HOWEVER, that you may
deduct from or set-off against amounts from time to time in the Lock-Box Account
(i) your usual and customary costs and expenses in respect of interest on
overdrafts and any return items, and your usual and customary fees and expenses
associated with any such return item, overdraft and/or the maintenance of the
Lock-Box Account or any related lock-box and (ii) the face amount (or portion
thereof) of any check, instrument or other item which was deposited in the
Lock-Box Account and which has been returned unpaid for reasons of insufficient
funds or has otherwise not been collected. You hereby acknowledge and agree that
all such interest costs, fees and expenses shall be for the account of [
] and in the event the amounts in the Lock-Box Account are
insufficient to reimburse you for the same, Wheeling- Pittsburgh agrees to
reimburse you for such interest, costs, fees and/or expenses immediately upon
you demand therefor in immediately available funds. In the event
Wheeling-Pittsburgh fails to reimburse you as set forth above, you may so notify
the Trustee and the Trustee may, but shall have no obligation to, pay the same.
You shall not be liable to either us or the Trustee, directly or
indirectly, for any damages arising out of your provision of services pursuant
to this letter agreement, other than damages arising as a result of your gross
negligence or willful misconduct, and in no event shall you be liable for any
consequential, indirect or special damages, even if you have been advised of the
possibility of such damages.
This letter agreement is binding upon us, you and the Trustee and each
of our respective successors and assigns and shall inure to the benefit of each
of us and our respective successors and assigns. It supersedes all prior
agreements, oral or written, with respect to the subject matter hereof and may
not be modified without the prior written consent of the Trustee. This letter
agreement may be terminated only as follows: (i) you may terminate this letter
agreement and the Lock-Box Account at any time which is thirty (30) days or more
after the date you shall have given written notice of such termination to us and
the (ii) the Trustee may terminate this letter agreement and the
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Lock-Box Account at any time which is thirty (30) days or more after the date
the Trustee shall have given written notice of such termination given to
Wheeling-Pittsburgh and you. Notice hereunder shall be delivered to each party
hereto at the address and to the attention of the person set forth below, or at
such other address or to the attention of such other party as the party to be
addressed may specify by written notice delivered t each other party hereto. No
termination shall affect or impair any of the agreements, rights or obligations
hereunder of any party with respect to any period of time prior to the date of
such termination.
This letter agreement shall be governed by and construed in accordance
with the internal law of the State of ______________ and applicable federal law.
This letter agreement shall become effective immediately upon being executed by
all of the parties hereto.
Very truly yours,
WHEELING-PITTSBURGH STEEL
CORPORATION
By: __________________
Name:
Title:
Acknowledged and agreed to this
day of ___________, 1994
[Wheeling-Pittsburgh Collection Account Bank]
By: _____________________
Name:
Title:
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ACKNOWLEDGMENT AND AUTHORIZATION
Bank One, Columbus, NA, as trustee (the "Trustee") for the
Wheeling-Pittsburgh Trade Receivables Master Trust, referenced in the attached
letter executed by Wheeling-Pittsburgh Corporation and acknowledged by
[Wheeling-Pittsburgh Collection Account Bank] and the Trustee (the "Lock-Box
Notice"), hereby acknowledges the transfer of exclusive ownership and control of
the "Lock-Box" and the "Lock-Box Account", in each case, as defined in and
pursuant to the Lock-Box Notice. The Trustee hereby acknowledges that the
Servicer shall have such access to the Lock-Box Account and shall only transfer
funds therein to the Wheeling-Pittsburgh Trade Receivables Master Trust
Concentration Account if the Servicer has standing instructions from the Trustee
as to how to affect such transfers or if so specifically directed to transfer
funds by the Trustee.
Very truly yours,
BANK ONE, COLUMBUS, NA
as Trustee
By: _____________________
Name:
Title:
Agreed and Acknowledged:
[Wheeling-Pittsburgh Collection Account Bank]
By:__________________________
Name:
Title:
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