WHEELING-PITTSBURGH CORPORATION WHEELING-PITTSBURGH
STEEL CORPORATION CONSUMERS MINING COMPANY
WHEELING-EMPIRE COMPANY ▇▇▇▇▇ OXYGEN COMPANY
PITTSBURGH-▇▇▇▇▇▇▇▇ CORPORATION WHEELING CONSTRUCTION
PRODUCTS, INC. WP STEEL VENTURE CORPORATION CHAMPION
METAL PRODUCTS, INC.
$275,000,000
9 1/4% Series A Senior Notes due 2007
Purchase Agreement
November 20, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CITICORP SECURITIES, INC.
$275,000,000
9 1/4% Series A Senior Notes due 2007
of
WHEELING-PITTSBURGH CORPORATION
PURCHASE AGREEMENT
November 20, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CITICORP SECURITIES, INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Wheeling-Pittsburgh Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation ("DLJ") and Citicorp Securities, Inc. (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers") an aggregate of
$275,000,000 in principal amount of its 9 1/4% Series A Senior Notes due 2007
(the "Series A Notes"), subject to the terms and conditions set forth herein.
The Series A Notes are to be issued pursuant to the provisions of an indenture
(the "Indenture"), to be dated as of the Closing Date (as defined below), among
the Company, the Guarantors (as defined below) and Bank One, N.A., as trustee
(the "Trustee"). The Series A Notes and the Series B Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"Notes." The Notes will be guaranteed (the "Subsidiary Guarantees") by each of
the entities listed on Schedule A, hereto (each, a "Guarantor" and collectively
the "Guarantors"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture.
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1. Offering Memorandum. The Series A Notes will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company and the Guarantors have prepared a preliminary offering
memorandum, dated November 3, 1997 (the "Preliminary Offering Memorandum") and a
final offering memorandum, dated November 20, 1997 (the "Offering Memorandum"),
relating to the Series A Notes and the Subsidiary Guarantees.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)(A "QIB") OR
(B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE
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TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Series A Notes set forth opposite the name of such Initial Purchaser on
Schedule B hereto at a purchase price equal to 97.246% of the principal amount
thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "Exempt Resales") of
the Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs") and (ii) to persons permitted to purchase
the Series A Notes in offshore transactions in reliance upon Regulation S under
the Act (each, a "Regulation S Purchaser") (such persons specified in clauses
(i) and (ii) being referred to herein as the "Eligible Purchasers"). The Initial
Purchasers will offer the Series A Notes to Eligible Purchasers initially at a
price equal to 99.621% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated the Closing Date,
in substantially the form of Exhibit A hereto, for so long as such Series A
Notes constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Act (the "Exchange Offer
Registration Statement") relating to the Company's 9 1/4% Series B Senior Notes
due 2007 (the "Series B Notes"), to be offered in exchange for the Series A
Notes (such offer to exchange being referred to as the "Exchange Offer") and the
Subsidiary Guarantees thereof and (ii) a shelf registration statement pursuant
to Rule 415 under the Act (the "Shelf Registration Statement" and, together with
the Exchange Offer Registration Statement, the "Registration Statements")
relating to the resale by certain holders of the Series
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A Notes and to use its best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. This
Agreement, the Indenture, the Notes, the Subsidiary Guarantees the Offering
Memorandum, the Preliminary Offering Memorandum and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "Operative
Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price
for, the Series A Notes shall be made at the offices of Weil, Gotshal & ▇▇▇▇▇▇
LLP or such other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m. New York City time, on November 26, 1997 or
at such other time as shall be agreed upon by the Initial Purchasers and the
Company. The time and date of such delivery and the payment are herein called
the "Closing Date."
(b) One or more of the Series A Notes in definitive
global form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "Global
Note"), shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) in each case with any transfer taxes thereon duly
paid by the Company against payment by the Initial Purchasers of the Purchase
Price thereof by wire transfer in same day funds to the order of the Company.
The Global Note shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Preliminary
Offering Memorandum or the Offering Memorandum untrue or that requires any
additions to or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein not mis-
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leading. The Company shall use its best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of any Series A
Notes under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of any Series A Notes under
any state securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those
persons identified by the Initial Purchasers to the Company as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may reasonably
request for the time period specified in Section 5(c). Subject to the Initial
Purchasers' compliance with its representations and warranties and agreements
set forth in Section 7 hereof, the Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
and supplements thereto required pursuant hereto, by the Initial Purchasers in
connection with Exempt Resales.
(c) During such period as in the opinion of counsel
for the Initial Purchasers an Offering Memorandum is required by law to be
delivered in connection with Exempt Resales by the Initial Purchasers and in
connection with market-making activities of the Initial Purchasers for so long
as any Series A Notes are outstanding, (i) not to make any amendment or
supplement to the Offering Memorandum of which the Initial Purchasers shall not
previously have been advised or to which the Initial Purchasers shall reasonably
object after being so advised and (ii) to prepare promptly upon the Initial
Purchasers' reasonable request, any amendment or supplement to the Offering
Memorandum which may be necessary or advisable in connection with such Exempt
Resales or such market-making activities.
(d) If, during the period referred to in Section 5(c)
above, any event shall occur or condition shall exist as a result of which, in
the opinion of counsel to the Initial Purchasers, it becomes necessary to amend
or supplement the Offering Memorandum in order to make the statements therein,
in the light of the circumstances when such Offering Memorandum is delivered to
an Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply in all material respects with applicable law.
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(e) Prior to the sale of all Series A Notes pursuant
to Exempt Resales as contemplated hereby, to cooperate in all material respects
with the Initial Purchasers and counsel to the Initial Purchasers in connection
with the registration or qualification of the Series A Notes for offer and sale
to the Initial Purchasers and pursuant to Exempt Resales under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to
continue such registration or qualification in effect so long as required for
Exempt Resales and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that neither the Company nor any Guarantor
shall be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Preliminary Offering Memorandum,
the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is
not now so subject.
(f) So long as the Notes are outstanding, (i) to mail
and make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Notes a financial report of the Company and
its subsidiaries on a consolidated basis, all such financial reports to include
a consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as the Notes are outstanding, to furnish
to the Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company or any of the
Guarantors is listed and such other publicly available information concerning
the Company and/or its subsidiaries as the Initial Purchasers may reasonably
request.
(h) So long as any of the Series A Notes remain
outstanding and during any period in which the Company and the Guarantors are
not subject to Section 13 or
6
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
to make available to any holder of Series A Notes in connection with any sale
thereof and any prospective purchaser of such Series A Notes from such holder,
the information ("Rule 144A Information") required by Rule 144A(d)(4) under the
Act.
(i) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to the performance of the obligations of the
Company and the Guarantors under this Agreement, including: (i) the fees,
disbursements and expenses of counsel to the Company and the Guarantors and
accountants of the Company and the Guarantors in connection with the sale and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the foregoing
(including financial statements), including the mailing and delivering of copies
thereof to the Initial Purchasers and persons designated by it in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, including any transfer or other taxes payable thereon, (iii) all costs
of printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Series A Notes, (iv) all expenses in connection with the
registration or qualification of the Series A Notes and the Subsidiary
Guarantees for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Initial Purchasers in
connection with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the Series A Notes
and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection
with the application for quotation of the Series A Notes in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation System -
PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's
counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (ix) any fees charged by rating agencies for the
rating of the Notes, (x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement, and
(xi) and all other costs and expenses incident to the performance of the
obligations of the Company and the Guarantors hereunder for which provision is
not otherwise made in this Section.
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(j) To use its best efforts to effect the inclusion
of the Series A Notes in PORTAL and to maintain the listing of the Series A
Notes on PORTAL for so long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry"
transfer of the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof
and continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise transfer or dispose of any debt securities of the Company
or any Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially similar to
the Notes and the Subsidiary Guarantees (other than the Notes and the Subsidiary
Guarantees), without the prior written consent of the Initial Purchasers.
(m) Not to sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes under the Act.
(n) Not to voluntarily claim, and to actively resist
any attempts to claim, the benefit of any usury laws against the holders of any
Notes.
(o) To cause the Exchange Offer to be made in the
appropriate form to permit Series B Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for the
Series A Notes and the Subsidiary Guarantees and to comply with all applicable
federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in
the Registration Rights Agreement.
(q) To use its best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by it
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Series A Notes and the Subsidiary Guarantees.
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6. Representations, Warranties and Agreements of the Company
and the Guarantors. As of the date hereof, each of the Company and the
Guarantors, jointly and severally, represents and warrants to, and agrees with,
the Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the
Offering Memorandum (which will be sent with the confirmation of sales) do not,
and any supplement or amendment to them will not, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. To the knowledge of
the Company, no stop order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or supplement thereto,
or any order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has been
issued.
(b) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified or licensed and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification or license, except where the failure to be so qualified or
licensed would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule C-1 hereto are
the only subsidiaries, direct or indirect, of the Company. All of the
outstanding shares of capital stock of each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature, except as set forth on Schedule C-3 hereto
(each, a "Lien").
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The entities listed on Schedule C-2 hereto are the only other entities in which
the Company has a direct or indirect equity interest. The number of shares or
other equity interests owned by the Company representing the percentage
interests each as listed across from each entity on Schedule C-2 have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more subsidiaries
free and clear of any Liens.
(e) This Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the Guarantors. When
the Indenture has been duly executed and delivered by the Company, each of the
Guarantors and all other parties thereto, the Indenture will be a valid and
binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms except as (i) the
enforceability thereof may be limited by the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if applicable, and the availability of equitable or other
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust
Indenture Act"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized and,
on the Closing Date, will have been validly executed and delivered by the
Company. When the Series A Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, the
Series A Notes will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by the
effect of applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if applicable, and the
availability of equitable or other remedies may be limited by equitable
principles of general applicability. On the Closing Date, the Series A Notes
will conform in all material respects as to legal matters to the description
thereof contained in the Offering Memorandum.
(h) On the Closing Date, the Series B Notes will have
been duly authorized by the Company. When the Series B Notes are issued,
executed and authenticated
10
in accordance with the terms of the Exchange Offer and the Indenture, the Series
B Notes will be entitled to the benefits of the Indenture and will be the valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as (i) the enforceability thereof may be
limited by the effect of applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if
applicable, and the availability of equitable or other remedies may be limited
by equitable or other principles of general applicability.
(i) The Subsidiary Guarantee to be endorsed on the
Series A Notes by each Guarantor has been duly authorized by such Guarantor and,
on the Closing Date, will have been duly executed and delivered by each such
Guarantor. When the Series A Notes have been issued, executed and authenticated
in accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of
the Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as (i)
the enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration, if applicable, and the availability of equitable or
other remedies may be limited by equitable or other principles of general
applicability. On the Closing Date, the Subsidiary Guarantees to be endorsed on
the Series A Notes will conform as to legal matters to the description thereof
contained in the Offering Memorandum.
(j) The Subsidiary Guarantee to be endorsed on the
Series B Notes by each Guarantor has been duly authorized by such Guarantor and,
when issued, will have been duly executed and delivered by each such Guarantor.
When the Series B Notes have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Guarantee of each Guarantor endorsed thereon will be entitled to the
benefits of the Indenture and will be the valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as (i) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by equitable principles of general
applicability. When the Series B Notes are issued, authenticated and delivered,
the Subsidiary Guarantees to be endorsed on the Series B Notes will conform as
to legal matters to the description thereof in the Offering Memorandum.
(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration
11
Rights Agreement has been duly executed and delivered, the Registration Rights
Agreement will be a valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each Guarantor in accordance
with its terms except as (i) the enforceability thereof may be limited by the
effect of applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if applicable, and the
availability of equitable or other remedies may be limited by equitable
principles of general applicability. On the Closing Date, the Registration
Rights Agreement will conform in all material respects as to legal matters to
the description thereof in the Offering Memorandum.
(l) The Term Loan Agreement among the Company, DLJ
Capital Funding, Inc., as syndication agent, and the lenders party thereto (the
"Term Loan Agreement") has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company and each
of the Guarantors. When the Term Loan Agreement has been duly executed and
delivered, the Term Loan Agreement will be a valid and binding agreement of the
Company, enforceable against the Company and each Guarantor in accordance with
its terms except as (i) the enforceability thereof may be limited by the effect
of applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Term Loan Agreement will conform in all
material respects as to legal matters to the summary description thereof in the
Offering Memorandum.
(m) Neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, (i) to which
the Company or any of its subsidiaries is a party or (ii) by which the Company
or any of its subsidiaries or their respective property is bound.
(n) The execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and each of the
Guarantors, compliance by the Company and each of the Guarantors with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, (x) to which
12
the Company or any of its subsidiaries is a party or (y) by which the Company or
any of its subsidiaries or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property, (iv) result
in the imposition or creation of (or the obligation to create or impose) a Lien
under, any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound, or (v) result in the termination, suspension
or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or result in any other impairment of the rights of the holder
of any such Authorization.
(o) The Intercreditor, Indemnification and
Subordination Agreement has been duly authorized by the Company and WPSC and, on
the Closing Date, will have been duly executed and delivered by the Company and
WPSC. When the Intercreditor, Indemnification and Subordination Agreement has
been duly executed and delivered, the Intercreditor, Indemnification and
Subordination Agreement will be a valid and binding agreement of the Company and
WPSC, enforceable against the Company and WPSC in accordance with its terms
except as (i) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Intercreditor, Indemnification and
Subordination Agreement will conform in all material respects as to legal
matters to the summary description thereof in the Offering Memorandum.
(p) The Tax Sharing Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. When the Tax Sharing Agreement has been duly
executed and delivered, the Tax Sharing Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Tax Sharing Agreement will conform in
all material respects as to legal matters to the summary description thereof in
the Offering Memorandum.
(q) There are no legal or governmental proceedings
pending or to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or could be a party or to which any of
their respective property is or could be subject, which might result, singly or
in the aggregate, in a Material Adverse Effect.
13
(r) Except as has been disclosed in the Offering
Memorandum, neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the rules and regulations promulgated thereunder, except for such violations
which would not have a Material Adverse Effect.
(s) Except as disclosed in the Offering Memorandum,
there are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(t) Each of the Company and its Restricted
Subsidiaries has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Each such Authorization is valid and in full force and effect
and each of the Company and its subsidiaries is in compliance with all the terms
and conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to the
Company or any of its subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any such event
or the presence of any such restriction would not, singly or in the aggregate,
have a Material Adverse Effect.
(u) The accountants, Price Waterhouse LLP, that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company and the Guarantors, as required
by the Act and the Exchange Act. The
14
historical financial statements, together with related schedules and notes, set
forth in the Preliminary Offering Memorandum and the Offering Memorandum comply
as to form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Act.
(v) The accountants for Wheeling-Nisshin, Inc.,
Coopers & ▇▇▇▇▇▇▇ LLP, that have certified the financial statements and
supporting schedules for Wheeling- Nisshin, Inc. included in the Preliminary
Offering Memorandum and the Offering Memorandum are independent public
accountants with respect to the Company and the Guarantors, as required by the
Act and the Exchange Act. The historical financial statements, together with
related schedules and notes for Wheeling-Nisshin, Inc., set forth in the
Preliminary Offering Memorandum and the Offering Memorandum comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(w) The historical financial statements, together
with related schedules and notes forming part of the Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply, but do not
contain year-end adjustments or notes to quarterly financial statements; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(x) The "as adjusted" financial information and data
included in the Preliminary Offering Memorandum and the Offering Memorandum are,
in all material respects, accurately presented and as calculated are prepared on
a basis consistent with the historical financial statements.
(y) The Company is not and, after giving effect to
the offering and sale of the Series A Notes and the application of the net
proceeds thereof as described in the Offering Memorandum, will not be, an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended.
15
(z) There are no contracts, agreements or
understandings between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a registration
statement under the Act with respect to any securities of the Company or such
Guarantor or to require the Company or such Guarantor to include such securities
with the Notes and Subsidiary Guarantees registered pursuant to any Registration
Statement.
(aa) Neither the Company nor any of its subsidiaries
nor any agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance or sale of
the Series A Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T
(12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(ab) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company or any Guarantor,
any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(ac) Since the respective dates as of which
information is given in the Offering Memorandum other than as set forth in the
Offering Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(ad) Each of the Preliminary Offering Memorandum and
the Offering Memorandum, as of its date, contains all the information specified
in, and meeting the requirements of, Rule 144A(d)(4) under the Act.
16
(ae) When the Series A Notes and the Subsidiary
Guarantees are issued and delivered pursuant to this Agreement, neither the
Series A Notes nor the Subsidiary Guarantees will be of the same class (within
the meaning of Rule 144A under the Act) as any security of the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(af) No form of general solicitation or general
advertising (as defined in Regulation D under the Act) was used by the Company,
the Guarantors or any of their respective representatives (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Series A Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Series A Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(ag) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(ah) None of the Company, the Guarantors nor any of
their respective affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("Regulation S") with respect
to the Series A Notes or the Subsidiary Guarantees.
(ai) Subject to the accuracy of the representations
and warranties of the Initial Purchasers in Section 7 hereof, the Series A Notes
offered and sold in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(aj) Subject to the accuracy of the representations
and warranties of the Initial Purchasers in Section 7 hereof, the sale of the
Series A Notes pursuant to Regulation S is not part of a plan or scheme to evade
the registration provisions of the Act.
(ak) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchasers, as to whom the Company and the Guarantors make no representation)
have complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Series
17
A Notes outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902(h).
(al) The Series A Notes sold in reliance on
Regulation S will be represented upon issuance by a temporary global security
that may not be exchanged for definitive securities until the expiration of the
40-day restricted period referred to in Rule 903(c)(3) of the Act and only upon
certification of beneficial ownership of such Series A Notes by non-U.S. persons
or U.S. persons who purchased such Series A Notes in transactions that were
exempt from the registration requirements of the Act.
(am) No registration under the Act of the Series A
Notes or the Subsidiary Guarantees is required for the sale of the Series A
Notes and the Subsidiary Guarantees to the Initial Purchasers as contemplated
hereby or for the Exempt Resales assuming the accuracy of the Initial
Purchasers' representations and warranties and agreements set forth in Section 7
hereof.
(an) Except as disclosed in the Offering Memorandum,
no relationship, direct or indirect, exists between or among the Company or any
of its subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its subsidiaries on the other
hand, which would be required by Item 404 of Regulation S-K under the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with the
Commission.
(ao) All indebtedness of the Company and the
Guarantors that will be repaid with the net proceeds of the issuance and sale of
the Series A Notes was incurred, and the indebtedness represented by the Series
A Notes is being incurred, for proper corporate purposes and in good faith and
each of the Company and the Guarantors was, at the time of the incurrence of
such indebtedness that will be repaid with the net proceeds of the issuance and
sale of the Series A Notes, and will be on the Closing Date (after giving effect
to the application of the net proceeds from the issuance of the Series A Notes)
solvent, and had at the time of the incurrence of such indebtedness that will be
repaid with the net proceeds of the issuance and sale of the Series A Notes and
will have on the Closing Date (after giving effect to the application of the net
proceeds from the issuance of the Series A Notes) sufficient capital for
carrying on their respective business and were, at the time of the incurrence of
such indebtedness that will be repaid with the net proceeds of the issuance and
sale of the Series A Notes, and will be on the closing Date (after giving effect
to the application of the proceeds from the issuance of the Series A Notes) able
to pay their respective debts as they mature.
18
(ap) The Company and its Restricted Subsidiaries have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and clear of all
Liens and defects, except such as are described in the Offering Memorandum or
such as do not materially affect the value of such property and do not interfere
in any material respect with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any material real property and
buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere in any material respect with the use made and
proposed to be made of such property and buildings by the Company and its
Restricted Subsidiaries, in each case except as described in the Offering
Memorandum.
(aq) All material tax returns required to be filed by
the Company and each of its subsidiaries in any jurisdiction have been filed,
other than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(ar) To the knowledge of the Company no action has
been taken and no law, statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
execution, delivery and performance of any of the Operative Documents, the
issuance of the Series A Notes or the Subsidiary Guarantees, or suspends the
sale of the Series A Notes or the Subsidiary Guarantees in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or other order
or relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Series A
Notes or the Subsidiary Guarantees in any jurisdiction referred to in Section
5(e).
(as) Each certificate signed by any officer of the
Company or any Guarantor and delivered to the Initial Purchasers or counsel for
the Initial Purchasers at the Closing shall be deemed to be a representation and
warranty by the Company or such Guarantor to the Initial Purchasers as to the
matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 9 hereof, counsel to the
19
Company and the Guarantors and counsel to the Initial Purchasers will rely upon
the accuracy and truth of the foregoing representations and hereby consents to
such reliance.
7. Initial Purchasers' Representations and Warranties. Each of
the Initial Purchasers, severally and not jointly, represents and warrants to
the Company, and agrees that:
(a) Such Initial Purchaser is a QIB, with such
knowledge and experience in financial and business matters as is necessary in
order to evaluate the merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the
Series A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the Series A Notes in a transaction that
would violate the Act or the securities laws of any state of the United States
or any other applicable jurisdiction and (B) will be reoffering and reselling
the Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of
general solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection
with Exempt Resales, such Initial Purchaser will solicit offers to buy the
Series A Notes only from, and will offer to sell the Series A Notes only to,
Eligible Purchasers. Each Initial Purchaser further agrees that it will offer to
sell the Series A Notes only to, and will solicit offers to buy the Series A
Notes only from (A) Eligible Purchasers that such Initial Purchaser reasonably
believes are QIBs and (B) Regulation S Purchasers, in each case, that agree that
(x) the Series A Notes purchased by them may be resold, pledged or otherwise
transferred within the time period referred to under Rule 144(k) (taking into
account the provisions of Rule 144(d) under the Act, if applicable) under the
Act, as in effect on the date of the transfer of such Series A Notes, only (I)
to the Company or any of its subsidiaries, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account or for the account
of a QIB in a transaction meeting the requirements of Rule 144A under the Act,
(III) in an offshore
20
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (VI) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Series A Notes or an interest therein is transferred a
notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its
affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Regulation S with
respect to the Series A Notes or the Subsidiary Guarantees.
(f) The Series A Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S have been and will
be offered and sold only in offshore transactions.
(g) The sale of the Series A Notes offered and sold
by such Initial Purchaser pursuant hereto in reliance on Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not
offered or sold and will not offer or sell the Series A Notes in the United
States or to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Act (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the later of
the commencement of the offering of the Series A Notes pursuant hereto and the
Closing Date, other than in accordance with Regulation S of the Act or another
exemption from the registration requirements of the Act. Such Initial Purchaser
agrees that, during such 40-day restricted period, it will not cause any
advertisement with respect to the Series A Notes (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted in any
public place and will not issue any circular relating to the Series A Notes,
except such advertisements as permitted by and include the statements required
by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior
to confirmation of a sale of Series A Notes by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during the
40-day restricted period referred to in Rule 903(c)(3) under the Act, it will
send to such distributor, dealer or person receiving a selling concession, fee
or other remuneration a confirmation or notice to substantially the following
effect:
21
The Series A Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S.
persons (i) as part of your distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of
the Offering and the Closing Date, except in either case in
accordance with Regulation S under the Securities Act (or Rule
144A), and in connection with any subsequent sale by you of
the Series A Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer
or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the
foregoing effect. Terms used above have the meanings assigned
to them in Regulation S.
(j) Such Initial Purchaser agrees that the Series A
Notes offered and sold in reliance on Regulation S will be represented upon
issuance by a global security that may not be exchanged for definitive
securities until the expiration of the 40-day restricted period referred to in
Rule 903(c)(3) of the Act and only upon certification of beneficial ownership of
such Series A Notes by non-U.S. persons or U.S. persons who purchased such
Series A Notes in transactions that were exempt from the registration
requirements of the Act.
(k) Such Initial Purchaser further represents and
agrees that (i) it has not offered or sold and will not offer or sell any Series
A Notes to persons in the United Kingdom prior to the expiration of the period
of six months from the issue date of the Series A Notes, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Series A Notes in, from or otherwise
involving the United Kingdom and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Series A Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(l) Such Initial Purchaser agrees that it will not
offer, sell or deliver any of the Series A Notes in any jurisdiction outside the
United States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the
22
Series A Notes in such jurisdictions. Such Initial Purchaser understands that no
action has been taken to permit a public offering in any jurisdiction outside
the United States where action would be required for such purpose.
Each Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and each Initial Purchaser hereby
consents to such reliance.
8. Indemnification.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless each Initial Purchaser, its directors,
its officers and each person, if any, who controls such Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto), the Preliminary Offering Memorandum or any Rule 144A
Information provided by the Company or any Guarantor to any holder or
prospective purchaser of Series A Notes pursuant to Section 5(h) or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to an Initial Purchaser furnished in
writing to the Company by such Initial Purchaser.
(b) The Initial Purchasers agree, severally but not
jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company or the Guarantors, to the same extent as the foregoing indemnity
from the Company and the Guarantors to the Initial Purchasers but only with
reference to information relating to the Initial Purchasers furnished in writing
to the Company by the Initial Purchasers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving
any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b) (the "indemnified
23
party"), the indemnified party shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all fees and expenses of such counsel, as incurred (except that in
the case of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to timely assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that representation of both parties is inappropriate due
to actual or potential different legal defenses available to them (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ Securities Corporation, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of
24
the indemnified party from all liability on claims that are or could have been
the subject matter of such action and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in
this Section 8 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (before deducting expenses) received by the
Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Series A Notes, in each
case as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Guarantors, and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation (even if
the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to
25
such losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, the Initial Purchasers shall not be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchasers exceeds the amount of any
damages which the Initial Purchasers have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Series A Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase the Series A Notes under this
Agreement are subject to the satisfaction of each of the following conditions;
provided, that, satisfaction of the condition in paragraph (l) below may not be
waived by the Initial Purchasers without the Company's consent:
(a) All the representations and warranties of the
Company and the Guarantors contained in this Agreement shall be true and correct
in all material respects, except for those representations and warranties of the
Company and the Guarantors which are qualified as to materiality, which
representations and warranties shall be true and correct in all respects, on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not
have occurred any downgrading, suspension or withdrawal of, nor shall any notice
have been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change in,
any rating of the Company or any Guarantor or any securities of the Company or
any Guarantor (including, without limitation, the placing of any of the
foregoing ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change, nor
shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any Guarantor or any securities of the
Company or
26
any Guarantor by any such rating organization and (iii) no such rating
organization shall have given notice that it has assigned (or is considering
assigning) a lower rating to the Notes than that on which the Notes were
marketed.
(c) Since the respective dates as of which
information is given in the Offering Memorandum other than as set forth in the
Offering Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there shall not have occurred any
change or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the capital
stock or in the long-term debt of the Company or any of its subsidiaries and
(iii) neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Series A Notes on the terms and in the manner contemplated in the Offering
Memorandum.
(d) You shall have received on the Closing Date a
certificate dated the Closing Date, signed by the President and the Chief
Financial Officer (or if there is no Chief Financial Officer, the Treasurer) of
the Company and each of the Guarantors, confirming the matters set forth in
Sections 6(ab), 9(a) and 9(b) and stating that each of the Company and the
Guarantors has complied with all the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied on or
prior to the Closing Date.
(e) You shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Initial Purchasers), dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company
and the Guarantors, to the effect that:
(i) each of the Company and its Restricted
Subsidiaries has been duly incorporated, is validly
existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its
business as described in the Offering Memorandum and
to own, lease and operate its properties;
27
(ii) each of the Company and its Restricted
Subsidiaries is duly qualified and is in good
standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of
its business or its ownership or leasing of property
requires such qualification or license, except where
the failure to be so qualified or licensed would not
have a Material Adverse Effect;
(iii) all the outstanding shares of capital
stock of the Company have been duly authorized and
validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of
capital stock of each of the Company's direct and
indirect subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable,
and are owned by the Company, free and clear of any
Lien, except as set forth in Schedule C-3 hereto;
(v) the Series A Senior Notes have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement, will
be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company,
enforceable in accordance with their terms except as
(x) the enforceability thereof may be limited by the
effect of applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally
and (y) rights of acceleration, if applicable, and
the availability of equitable or other remedies or
other may be limited by equitable principles of
general applicability;
(vi) the Subsidiary Guarantees have been
duly authorized and, when the Series A Notes are
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with the
terms of this Agreement, the Subsidiary Guarantees
endorsed thereon will be entitled to the benefits of
the Indenture and will be valid and binding
obligations of the Guarantors, enforceable in
accordance with their terms except as (x) the
enforceability thereof may be limited by the effect
of applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights
of acceleration, if applicable, and the availability
28
of equitable or other remedies may be limited by
equitable principles of general applicability;
(vii) the Indenture has been duly
authorized, executed and delivered by the Company and
each Guarantor and is a valid and binding agreement
of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance
with its terms except as (x) the enforceability
thereof may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of
equitable or other remedies may be limited by
equitable principles of general applicability;
(viii) this Agreement has been duly
authorized, executed and delivered by the Company and
the Guarantors;
(ix) the Registration Rights Agreement has
been duly authorized, executed and delivered by the
Company and the Guarantors and is a valid and binding
agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in
accordance with its terms, except as (x) the
enforceability thereof may be limited by the effect
of applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights
of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by
equitable principles of general applicability;
(x) the Term Loan Agreement has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable against the Company in accordance with
its terms, except as (x) the enforceability thereof
may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of
equitable or other remedies may be limited by
equitable principles of general applicability;
(xi) the Series B Senior Notes have been
duly authorized;
(xii) the Intercreditor, Indemnification and
Subordination Agreement has been duly authorized,
executed and delivered by each of
29
WHX, Unimast, the Company and WPSC and is a valid and
binding agreement of each party thereto in accordance
with its terms, except as (x) the enforceability
thereof may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of
equitable or other remedies may be limited by
equitable principles of general applicability;
(xiii) the Tax Sharing Agreement has been
duly authorized, executed and delivered by each of
WHX and the Company and is a valid and binding
agreement of each party thereto in accordance with
its terms, except as (x) the enforceability thereof
may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of
equitable or other remedies may be limited by
equitable principles of general applicability;
(xiv) the statements under the captions
"Risk Factors-Significant Outstanding Indebtedness of
The Company," "Risk Factors-Cross-default
Provisions," "Risk Factors-Obligations to Joint
Ventures" "Risk Factors- Substantial Employee Post
Retirement Obligations," "Fraudulent Conveyance;
Possible Invalidity of Subsidiary Guarantees"
"Business- Legal Proceedings-Environmental Matters,"
"Business-Legal Proceedings-General Litigation,"
"Description of Notes," "Description of Principal
Indebtedness", "Description of Receivables Facility"
and "Indemnification and Intercreditor Agreement" in
the Offering Memorandum, insofar as such statements
constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present in
all material respects such legal matters, documents
and proceedings;
(xv) neither the Company nor any of its
subsidiaries is in violation of its respective
charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor
any of its subsidiaries is in default in the
performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries,
taken as a whole, (i) to which the Company or any of
its subsidiaries is a party or (ii) by which
30
the Company or any of its subsidiaries or their
respective property is bound;
(xvi) the execution, delivery and
performance of this Agreement and the other Operative
Documents by the Company and each of the Guarantors,
the compliance by the Company and each of the
Guarantors with all provisions hereof and thereof and
the consummation of the transactions contemplated
hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or
qualification with, any court or governmental body or
agency (except such as may be required under the
securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument (x)
to which the Company or any of its subsidiaries is a
party or (y) by which the Company or any of its
subsidiaries or their respective property is bound,
that is material to the Company and its subsidiaries,
taken as a whole, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body
or agency having jurisdiction over the Company, any
of its subsidiaries or their respective property,
(iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any
agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their
respective property is bound, or (v) result in the
termination, suspension or revocation of any
Authorization (as defined below) of the Company or
any of its subsidiaries or result in any other
impairment of the rights of the holder of any such
Authorization;
(xvii) after due inquiry but without
independent investigation, other than as set forth on
the Offering Memorandum such counsel does not know of
any legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries is or could be a party or to which any
of their respective property is or could be subject,
which might result, singly or in the aggregate, in a
Material Adverse Effect;
31
(xviii) the Company is not and, after giving
effect to the offering and sale of the Series A Notes
and the application of the net proceeds thereof as
described in the Offering Memorandum, will not be, an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xix) to the best of such counsel's
knowledge after due inquiry but without independent
investigation, there are no contracts, agreements or
understandings between the Company or any Guarantor
and any person granting such person the right to
require the Company or such Guarantor to file a
registration statement under the Act with respect to
any securities of the Company or such Guarantor or to
require the Company or such Guarantor to include such
securities with the Notes and Subsidiary Guarantees
registered pursuant to any Registration Statement;
(xx) the Indenture complies as to form in
all material respects with the requirements of the
TIA, and the rules and regulations of the Commission
applicable to an indenture which is qualified
thereunder. It is not necessary in connection with
the offer, sale and delivery of the Series A Notes to
the Initial Purchasers in the manner contemplated by
this Agreement or in connection with the Exempt
Resales to qualify the Indenture under the TIA.
(xxi) no registration under the Act of the
Series A Notes is required for the sale of the Series
A Notes to the Initial Purchasers as contemplated by
this Agreement or for the Exempt Resales assuming
that (i) each Initial Purchaser is a QIB, or a
Regulation S Purchaser, (ii) the accuracy of, and
compliance with, the Initial Purchasers'
representations and agreements contained in Section 7
of this Agreement and (iii) the accuracy of the
representations of the Company and the Guarantors set
forth in Sections 5(h) and 6(ah), (ai), (aj), (ak)
and (al) of this Agreement.
(xxii) such counsel has no reason to believe
that, as of the date of the Offering Memorandum or as
of the Closing Date, the Offering Memorandum, as
amended or supplemented, if applicable (except for
the financial statements and other financial data
included therein, as to which such counsel need not
express any belief) contains any untrue statement
32
of a material fact or omits to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
described in Section 9(e) above shall be rendered to you at the request of the
Company and the Guarantors and shall so state therein. In giving such opinion
with respect to the matters covered by Section 9(f)(xxii), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome
& ▇▇▇▇▇▇▇▇▇▇ LLP may state that their opinion and belief are based upon their
participation in the preparation of the Offering Memorandum and any amendments
or supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification except as specified. For opinions
other than those with respect to federal law, the laws of the State of New York
or Delaware corporate laws, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP may rely on
opinions of local counsel.
(f) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP,
counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at
the time this Agreement is executed and at the Closing Date, letters dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Price Waterhouse LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchasers
with respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(h) The Initial Purchasers shall have received, at
the time this Agreement is executed and at the Closing Date, letters dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Coopers & ▇▇▇▇▇▇▇ LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchasers
with respect to the financial statements and certain financial information for
Wheeling-Nisshin, Inc. contained in the Offering Memorandum.
(i) The Series A Notes shall have been approved by
the NASD for trading and duly listed in PORTAL.
33
(j) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors and the Trustee.
(k) The Company and the Guarantors shall have
executed the Registration Rights Agreement and the Initial Purchasers shall have
received an original copy thereof, duly executed by the Company and the
Guarantors.
(l) The Company shall have executed and delivered the
Term Loan Agreement, the Company shall have borrowed an aggregate of not less
than $75,000,000 thereunder and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company.
(m) The Initial Purchasers shall have received a
certificate of Bank One, N.A., as trustee under the Indenture, dated as of
November 15, 1993, by and between the Company and Bank One, Columbus N.A. n/k/a
Bank One, N.A. (the "Old Indenture"), certifying that the Company has satisfied
all conditions to defease the 9 3/8% Senior Notes due 2003 (the "Old Notes")
under Section 8.2 of the Old Indenture and that the Company's obligations under
the Old Indenture have been discharged in accordance with Section 8.2 thereof.
(n) Each of WHX, Unimast, the Company and WPSC shall
have entered into the Intercreditor, Indemnification and Subordination Agreement
in a form acceptable to the Initial Purchasers, and the Initial Purchasers shall
have received an original copy thereof, duly executed by the parties thereto.
(o) Each of WHX and the Company shall have entered
into the Tax Sharing Agreement in a form acceptable to the Initial Purchasers,
and the Initial Purchasers shall have received an original copy thereof, duly
executed by the parties thereto.
(p) Neither the Company nor the Guarantors shall have
failed at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with by the
Company or the Guarantors, as the case may be, at or prior to the Closing Date.
10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
34
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchasers by written notice to the Company if
any of the following has occurred: (i) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Series A Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Series A Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Series A Notes to
be purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule B bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Series A Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of the Series A Notes which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchaser. If on the Closing Date any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A
35
Notes with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Series A Notes to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Company for purchase of such Series A Notes are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to Wheeling-Pittsburgh Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer and (ii) if to the
Initial Purchasers, c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department, or in
any case to such other address as the person to be notified may have requested
in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Guarantors
and the Initial Purchasers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Series A Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Initial
Purchasers, the officers or directors of the Initial Purchasers, any person
controlling an Initial Purchaser, the Company, any Guarantor, the officers or
directors of the Company or any Guarantor, or any person controlling the Company
or any Guarantor, (ii) acceptance of the Series A Notes and payment for them
hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company and each
Guarantor, jointly and severally, agree to reimburse the Initial Purchasers for
all out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by them. Notwithstanding any termination of this Agreement, the Company
shall be liable for all expenses which it has agreed to pay pursuant to Section
5(i) hereof. The Company and each Guarantor also agree, jointly and severally,
to reimburse the Initial Purchasers and their officers, directors and each
person, if any, who
36
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under this Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
37
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
WHEELING-PITTSBURGH CORPORATION
By:
---------------------------------
Name:
Title:
WHEELING-PITTSBURGH STEEL
CORPORATION
By:
---------------------------------
Name:
Title:
CONSUMERS MINING COMPANY
By:
-----------------------------------
Name:
Title:
WHEELING EMPIRE COMPANY
By:
----------------------------------
Name:
Title:
▇▇▇▇▇ OXYGEN COMPANY
By:
---------------------------------
Name:
Title:
38
PITTSBURGH ▇▇▇▇▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
Title:
WHEELING CONSTRUCTION PRODUCTS,
INC.
By:
------------------------------------
Name:
Title:
WP STEEL VENTURE CORPORATION
By:
-----------------------------------
Name:
Title:
CHAMPION METAL PRODUCTS, INC.
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
39
CITICORP SECURITIES, INC.
By:
--------------------------------
Name:
Title:
SCHEDULE A
Guarantors
Wheeling-Pittsburgh Steel Corporation
Consumers Mining Company
Wheeling-Empire Company
▇▇▇▇▇ Oxygen Company
Pittsburgh-▇▇▇▇▇▇▇▇ Company
Wheeling Construction Products, Inc.
WP Steel Venture Corporation
Champion Metal Products, Inc.
A-1
SCHEDULE B
Principal Amount
Initial Purchaser of Notes
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation.................................. $220,000,000
Citicorp Securities, Inc.................................. $ 55,000,000
Total ................................................. $275,000,000
B-1
SCHEDULE C-1
Subsidiaries
Wheeling-Pittsburgh Corporation Subsidiaries:
Wheeling-Pittsburgh Steel Corporation Consumers Mining Company
Wheeling-Empire Company Monessen Southwestern Railway Company ▇▇▇▇▇
Oxygen Company Pittsburgh-▇▇▇▇▇▇▇▇ Corporation Wheeling Construction
Products, Inc.
Wheeling-Pittsburgh Steel Corporation Subsidiaries:
Wheeling Pittsburgh Funding, Inc.
WP Steel Venture Corp.
Consumers Mining Company Subsidiary:
W-P Coal Company
Wheeling-Construction Products, Inc. Subsidiary:
Champion Metal Products, Inc.
C-1
SCHEDULE C-2
Joint Ventures
Entity Number of Shares Percentage Interest
Wheeling-Nisshin, Inc. 2,500 35.7%
Ohio Coatings Company 600 50.0%
C-2
SCHEDULE C-3
Pledged Subsidiary Stock
Wheeling-Pittsburgh Funding, Inc.
Pittsburgh-Canfield Corporation
Wheeling Construction Products, Inc.
Champion Metal Products, Inc.
C-3
EXHIBIT A
Form of Registration Rights Agreement