Exhibit 4.12
FORM OF CREDIT LINE DEED OF TRUST
(Xxxxxxx County, West Virginia)
THIS INSTRUMENT SECURES AN OBLIGATION THAT MAY
----------------------------------------------
INCREASE AND DECREASE FROM TIME TO TIME
---------------------------------------
THIS CREDIT LINE DEED OF TRUST ("DEED OF TRUST"), made as of
______________, 2002, is made and executed by WEIRTON STEEL CORPORATION, a
Delaware corporation ("GRANTOR"), having its principal offices at 000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000, XXXX XXXXX XXXX, being a resident
of Jefferson County, West Virginia, as Trustee ("TRUSTEE"), having an address as
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000, for the benefit of
FLEET CAPITAL CORPORATION ("FLEET"), a Rhode Island corporation with an office
at Xxx Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, as agent (Fleet in
its capacity as agent being hereinafter referred to as "AGENT") for Lenders (as
"LENDERS" is defined in the Loan and Security Agreement referred to below).
RECITALS
I. Pursuant to the terms of a certain Amended and Restated
Loan and Security Agreement of even date herewith (said Amended and Restated
Loan and Security Agreement, together with all amendments, supplements,
modifications and replacements thereof, being hereinafter referred to as the
"LOAN AGREEMENT") by and between Fleet, as a Lender and as Agent for all
Lenders, Foothill Capital Corporation, as a Lender and as Syndication Agent, The
CIT Group/Business Credit, Inc., as a Lender and as a Documentation Agent, GMAC
Business Credit, LLC, as a Lender and as a Documentation Agent, and such other
Lenders as are or may become party to the Loan Agreement and Grantor, Agent and
Lenders have agreed to make loans to Grantor and extend other financial
accommodations to Grantor in an aggregate principal amount of $200,000,000
(collectively, the "LOANS"). The Loans consist of revolving loans, evidenced by
one or more notes in the aggregate principal amount of $200,000,000 (said notes,
together with all amendments, supplements, modifications and full or partial
replacements thereof, being hereinafter referred to as the "NOTES"), having a
maturity date of March 31, 2004. A schedule of the Notes is attached hereto as
SCHEDULE 1. The terms and provisions of the Notes and the Loan Agreement are
hereby incorporated by reference in this Deed of Trust. The rate or rates of
interest payable under the Loan Agreement may vary from time to time.
II. THIS IS A CREDIT LINE DEED OF TRUST FOR THE PURPOSES OF
X.XX. CODE SECTION 38 1-14 AND SECURES A MAXIMUM AMOUNT NOT TO EXCEED
$200,000,000, and this Deed of Trust is also security for the payment of
interest on the Loans and for the payment of taxes, insurance premiums and other
obligations, including interest thereon, undertaken by Agent and/or Lenders
pursuant to the provisions of this Deed of Trust or the Loan Agreement or by
Trustees under this Deed of Trust. This Deed of Trust secures future advances
that are intended to be obligatory which Agent and/or Lenders have
agreed to make in accordance with the provisions of the Loan Agreement and
therefore the principal amount secured hereby may increase or decrease from time
to time.
GRANTING CLAUSES
To secure the payment of the indebtedness evidenced by the
Notes and the performance and observance of all covenants and conditions
contained in this Deed of Trust, the Notes, the Loan Agreement, and any other
documents and instruments now or hereafter executed by Grantor to evidence,
secure or guarantee the payment of all or any portion of the indebtedness under
the Notes, the Loan Agreement and any and all renewals, extensions, amendments
and replacements of this Deed of Trust, the Notes, the Loan Agreement and any
such other documents and instruments (the Notes, the Loan Agreement, this Deed
of Trust, and any other documents and instruments now or hereafter executed and
delivered in connection with the Loans, and any and all amendments, renewals,
extensions and replacements hereof and thereof, being sometimes referred to
collectively as the "LOAN INSTRUMENTS") (all indebtedness and liabilities
secured hereby being hereinafter sometimes referred to as "BORROWER'S
LIABILITIES") and in consideration of the indebtedness and trusts hereinafter
set forth and of the sum of $10, Grantor does hereby assign, grant and convey
unto Trustee, in trust with the power of sale, the following described property
and, with respect to that portion of the following described property which is
personal property, unto Trustee and Agent, subject to the terms and conditions
herein:
(A) The land located in Xxxxxxx County, West Virginia, legally
described in attached EXHIBIT A ("LAND");
(B) All the buildings, structures, improvements and fixtures
of every kind or nature now or hereafter situated on the Land and all machinery,
appliances, equipment, furniture and all other personal property of every kind
or nature which constitute fixtures with respect to the Land, together with all
extensions, additions, improvements, substitutions and replacements of the
foregoing ("IMPROVEMENTS");
(C) All easements, tenements, rights-of-way, vaults, gores of
land, streets, ways, alleys, passages, sewer rights, water courses, water rights
and powers and appurtenances in any way belonging, relating or appertaining to
any of the Land or Improvements, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired
("APPURTENANCES");
(D) (i) All judgments, insurance proceeds, awards of damages
and settlements which may result from any damage to all or any portion of the
Land, Improvements or Appurtenances or any part thereof or to any rights
appurtenant thereto;
(ii) All compensation, awards, damages, claims, rights of
action and proceeds of or on account of (a) any damage or taking, pursuant to
the power of eminent domain, of the Land, Improvements or Appurtenances or any
part thereof, (b) damage to all
-2-
or any portion of the Land, Improvements or Appurtenances by reason of the
taking, pursuant to the power of eminent domain, of all or any portion of the
Land, Improvements, Appurtenances or of other property, or (c) the alteration of
the grade of any street or highway on or about the Land, Improvements,
Appurtenances or any part thereof; and, except as otherwise provided herein,
Agent is hereby authorized to collect and receive said awards and proceeds and
to give proper receipts and acquittances therefor and, except as otherwise
provided herein, to apply the same toward the payment of the indebtedness and
other sums secured hereby; and
(iii) All proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Land, Improvements or
Appurtenances;
(E) All rents, issues, profits, income and other benefits now
or hereafter arising from or in respect of the Land, Improvements or
Appurtenances (the "RENTS"); it being intended that this Granting Clause shall
constitute an absolute and present assignment of the Rents, subject, however, to
the revocable license given to Grantor to collect and use the Rents as provided
in this Deed of Trust;
(F) Any and all leases, licenses and other occupancy
agreements now or hereafter affecting the Land, Improvements or Appurtenances,
together with all security therefor and guaranties thereof and all monies
payable thereunder, and all books and records owned by Grantor which contain
evidence of payments made under the leases and all security given therefor
(collectively, the "LEASES"), subject, however, to the revocable license given
in this Deed of Trust to Grantor to collect the Rents arising under the Leases
as provided in this Deed of Trust;
(G) Any and all after-acquired right, title or interest of
Grantor in and to any of the property described in the preceding Granting
Clauses; and
(H) The proceeds from the sale, transfer, pledge or other
disposition of any or all of the property described in the preceding Granting
Clauses;
Notwithstanding anything to the contrary contained herein, in
no event shall the Property include, nor shall Grantor be deemed to have
granted, assigned or conveyed any interest hereunder in, any of the following:
(i) the assets described on EXHIBIT B attached hereto, and (ii) the Project
Assets or any property arising from, or as a result of the disposition of, any
of the Project Assets. As used herein, "PROJECT ASSETS" shall mean all of the
pollution control equipment (as equipment is defined in the Uniform Commercial
Code of the State of West Virginia ("UCC")) and fixtures (as defined in the UCC)
located at Grantor's Weirton, West Virginia steel making facility, the purchase
and/or installation of which were financed or refinanced with the proceeds of
the City of Weirton, West Virginia's Pollution Control Revenue Refunding Bonds
(Weirton Steel Corporation Project) Series 1989 issued by the City of Weirton,
West Virginia.
-3-
All of the Property described in the Granting Clauses is
sometimes referred to collectively as the "PROPERTY." The Rents and Leases are
pledged on a parity with the Land and Improvements and not secondarily.
TO HAVE AND TO HOLD the Property unto Trustee and its
successors in trust forever.
IN TRUST NEVERTHELESS, to secure payment of Xxxxxxxx's
Liabilities.
ARTICLE ONE
COVENANTS OF MORTGAGOR
Grantor covenants and agrees with Agent as follows:
1.1. PERFORMANCE UNDER LOAN AGREEMENT, NOTES, DEED OF TRUST
AND OTHER LOAN INSTRUMENTS. Grantor shall perform, observe and comply with or
cause to be performed, observed and complied with in a complete and timely
manner all provisions hereof, of the Loan Agreement and of the Notes, every
other Loan Instrument and every instrument evidencing or securing Borrower's
Liabilities.
1.2. GENERAL COVENANTS AND REPRESENTATIONS. Grantor covenants,
represents and warrants that as of the date hereof and at all times thereafter
during the term hereof: (a) Grantor is seized of an indefeasible estate in fee
simple in that portion of the Property which is real property, and has good and
absolute title to it and the balance of the Property free and clear of all
liens, security interests, charges and encumbrances whatsoever, except those set
forth on Schedule B of the loan policy of title insurance accepted by Agent
insuring the lien of this Deed of Trust permitted by Agent (such liens, security
interests, charges and encumbrances being hereinafter referred to as the
"PERMITTED ENCUMBRANCES"), which Permitted Encumbrances shall include Permitted
Liens (as defined in the Loan Agreement) and the licenses, covenants,
restrictions, easements and rights of way granted from time to time by Grantor
for utilities, pipelines, egress and ingress servicing or benefiting the
Property and/or other property owned, leased or occupied by Grantor, any
affiliate of Grantor, or any successor or assignee of Grantor or any affiliate
of Grantor, under that certain Master Declaration of Easements, Covenants and
Restrictions for Weirton, West Virginia Plant Site dated as of October 25, 2001;
as amended under that certain First Amendment to Master Declaration of
Easements, Covenants and Restrictions for Weirton, West Virginia Plant Site
dated as of October 26, 2001, and as further amended under that certain Second
Amendment to Master Declaration of Easements, Covenants and Restrictions for
Weirton, West Virginia Plant Site dated as of _____________, 2002; and (b)
Grantor will maintain and preserve the lien of this Deed of Trust as a first and
paramount lien on the Property, subject only to the Permitted Encumbrances
(except that this Deed of Trust shall not be subject to any items shown on a
schedule of subordinate items contained in said loan policy), until Xxxxxxxx's
Liabilities have been paid in full and all obligations of Agent and Lenders
under the Loan Agreement have been terminated.
-4-
1.3. COMPLIANCE WITH LAWS AND OTHER RESTRICTIONS. Grantor
covenants and represents that the Land and the Improvements and the use thereof
presently comply with, and, to the extent required by the Loan Agreement, will
continue to comply with, all applicable restrictive covenants, zoning and
subdivision ordinances and building codes, licenses, health and environmental
laws and regulations and all other applicable laws, ordinances, rules and
regulations.
1.4. TAXES AND OTHER CHARGES.
1.4.1. TAXES AND ASSESSMENTS. Grantor shall pay promptly when
due all taxes, assessments, rates, dues, charges, fees, levies, fines,
impositions, liabilities, obligations, liens and encumbrances of every kind and
nature whatsoever now or hereafter imposed, levied or assessed upon or against
the Property or any part thereof, or upon or against this Deed of Trust or
Borrower's Liabilities; provided, however, that Grantor may in good faith
contest the validity, applicability or amount of any tax, assessment or other
charge, if Grantor complies with any provisions which may be set forth in the
Loan Agreement regarding the contest of taxes.
1.4.2. TAXES AFFECTING INTEREST OF AGENT AND LENDERS. If any
state, federal, municipal or other governmental law, order, rule or regulation,
which becomes effective subsequent to the date hereof, in any manner changes or
modifies existing laws governing the taxation of mortgages or deeds of trust or
debts secured by mortgages or deeds of trust, or the manner of collecting taxes,
so as to impose on Agent or Lenders a tax by reason of its ownership of any or
all of the Loan Instruments or measured by the principal amount of Borrower's
Liabilities, requires or has the practical effect of requiring Agent or Lenders
to pay any portion of the real estate taxes levied in respect of the Property or
to pay any tax levied in whole or in part in substitution for real estate taxes
or otherwise affects materially and adversely the rights of Agent or Lenders in
respect of Borrower's Liabilities, this Deed of Trust or the other Loan
Instruments, Borrower's Liabilities and all interest accrued thereon shall, upon
thirty (30) days' notice, become due and payable forthwith at the option of
Agent, whether or not there shall have occurred an Event of Default, provided,
however, that, if Grantor may, without violating or causing a violation of such
law, order, rule or regulation, pay such taxes or other sums as are necessary to
eliminate such adverse effect upon the rights of Agent and Lenders and does pay
such taxes or other sums when due, Agent may not elect to declare due Borrower's
Liabilities by reason of the provisions of this Section 1.4.2.
1.5. MECHANIC'S AND OTHER LIENS. Grantor shall not permit or
suffer any mechanic's, laborer's, materialman's, statutory or other lien or
encumbrance (other than Permitted Liens and any lien for taxes and assessments
not yet due) to be created upon or against the Property; provided, however, that
Grantor may in good faith, by appropriate proceedings, contest the validity,
applicability or amount of any asserted lien, if Grantor complies with any
provisions which may be set forth in the Loan Agreement regarding the contest of
liens.
-5-
1.6. INSURANCE AND CONDEMNATION.
1.6.1. INSURANCE POLICIES. Grantor shall, at its sole expense,
obtain for, deliver to and maintain for the benefit of Agent and list Agent as
loss payee and additional insured, as its interest may appear, until Xxxxxxxx's
Liabilities are paid in full, such policies of insurance as are required by the
Loan Agreement.
1.6.2. ADJUSTMENT OF LOSS; APPLICATION OF PROCEEDS. Except as
otherwise may be provided by the Loan Agreement, Agent is hereby authorized and
empowered, at its option, to adjust or compromise any loss under any insurance
policies covering the Property and to collect and receive the proceeds from any
such policy or policies. Grantor hereby irrevocably appoints Agent as its
attorney-in-fact for the purposes set forth in the preceding sentence. The
entire amount of such proceeds, awards or compensation shall be applied as
provided in the Loan Agreement.
1.6.3. CONDEMNATION AWARDS. Agent shall be entitled to all
compensation, awards, damages, claims, rights of action and proceeds of, or on
account of, (i) any damage or taking, pursuant to the power of eminent domain,
of the Property or any part thereof, (ii) damage to the Property by reason of
the taking, pursuant to the power of eminent domain, of other property, or (iii)
the alteration of the grade of any street or highway on or about the Property.
Agent is hereby authorized, at its option, to commence, appear in and prosecute
in its own or Grantor's name any action or proceeding relating to any such
compensation, awards, damages, claims, rights of action and proceeds and to
settle or compromise any claim in connection therewith. Grantor hereby
irrevocably appoints Agent as its attorney-in-fact for the purposes set forth in
the preceding sentence. In the event that Grantor acquires any real estate to
replace all or any portion of the Property which became subject to any such
action or proceeding, Grantor shall execute and deliver to Agent a deed of trust
of such replacement property, which deed of trust shall be in substantially the
same form as this Deed of Trust, and Grantor shall deliver to Agent a survey and
a title insurance policy and such other items in connection with such
replacement property as Agent may require, all in form and substance
satisfactory to Agent.
1.6.4. OBLIGATION TO REPAIR. If all or any part of the
Property shall be damaged or destroyed by fire or other casualty or shall be
damaged or taken through the exercise of the power of eminent domain or other
cause described in Section 1.6.3, Grantor shall promptly and with all due
diligence restore and repair the Property whether or not the proceeds, award or
other compensation are made available to Grantor or are sufficient to pay the
cost of such restoration or repair.
1.7. AGENT MAY PAY; DEFAULT RATE. Upon Xxxxxxx's failure to
pay any amount required to be paid by Grantor under any provision of this Deed
of Trust, Agent may pay the same. Grantor shall pay to Agent on demand the
amount so paid by Agent together with interest at a rate equal to the highest
rate payable under the Loan Agreement after the occurrence of an "Event of
Default" as such term is defined in the Loan Agreement (the
-6-
"DEFAULT RATE") and the amount so paid by Agent, together with interest, shall
be added to Xxxxxxxx's Liabilities.
1.8. CARE OF THE PROPERTY. Grantor shall preserve and maintain
the Property in good operating condition. Grantor shall not, without the prior
written consent of Agent, permit, commit or suffer any waste, impairment or
deterioration of the Property or of any part thereof. Except to the extent that
capital expenditures are permitted by the Loan Agreement, no new improvements
shall be constructed on the Property and no part of the Property shall be
altered in any material manner without the prior written consent of Agent.
1.9. TRANSFER OR ENCUMBRANCE OF THE PROPERTY. Except as
permitted by the Loan Agreement, Grantor shall not permit or suffer to occur any
sale, assignment, conveyance, transfer, mortgage, lease or encumbrance of the
Property, any part thereof, or any interest therein, without the prior written
consent of Agent having been obtained.
1.10. FURTHER ASSURANCES. At any time and from time to time,
upon Agent's request, Grantor shall make, execute and deliver, or cause to be
made, executed and delivered, to Agent, and where appropriate shall cause to be
recorded, registered or filed, and from time to time thereafter to be
re-recorded, re-registered and refiled at such time and in such offices and
places as shall be deemed desirable by Agent, any and all such further
mortgages, security agreements, financing statements, instruments of further
assurance, certificates and other documents as Agent may consider reasonably
necessary in order to effectuate or perfect, or to continue and preserve the
obligations under, this Deed of Trust.
1.11. ASSIGNMENT OF RENTS. The assignment of rents, income and
other benefits contained in Section (E) of the Granting Clauses of this Deed of
Trust shall be fully operative without any further action on the part of either
party, and, specifically, Agent shall be entitled, at its option, upon the
occurrence of an Event of Default hereunder, to all rents, income and other
benefits from the Property, whether or not Agent takes possession of such
property. Such assignment and grant shall continue in effect until Xxxxxxxx's
Liabilities are paid in full and all obligations of Agent and Lenders under the
Loan Agreement have been terminated, the execution of this Deed of Trust
constituting and evidencing the irrevocable consent of Grantor to the entry upon
and taking possession of the Property by Agent pursuant to such grant, whether
or not foreclosure proceedings have been instituted. Notwithstanding the
foregoing, so long as no Event of Default has occurred, Grantor shall have a
revocable license to continue to collect the rents, income and other benefits
from the Property as they become due and payable but not more than thirty (30)
days prior to the due date thereof.
1.12. AFTER-ACQUIRED PROPERTY. To the extent permitted by, and
subject to, applicable law, the lien of this Deed of Trust shall automatically
attach, without further act, to all property hereafter acquired by Grantor
located in or on, or attached to, or used or intended to be used in connection
with, or with the operation of, the Property or any part thereof.
1.13. LEASES AFFECTING PROPERTY. Grantor shall comply with and
perform in a complete and timely manner all of its obligations as landlord under
all leases affecting the
-7-
Property or any part thereof. The assignment contained in Sections (E) and (F)
of the Granting Clauses shall not be deemed to impose upon Agent any of the
obligations or duties of the landlord or Grantor provided in any lease.
1.14. MANAGEMENT OF PROPERTY. Grantor shall cause the Property
to be managed at all times in accordance with sound business practice.
1.15. EXECUTION OF LEASES. Grantor shall not permit any leases
to be made of the Property, or to be modified, terminated, extended or renewed,
without the prior written consent of Agent.
1.16. EXPENSES. In the event of foreclosure hereof, Agent
shall be entitled to add to Borrower's Liabilities its reasonable expenses
related thereto.
1.17. ENVIRONMENTAL CONDITIONS.
(a) Except as disclosed by letter dated ___________, 2002 to
the Agent from Grantor, Grantor covenants, warrants and represents that
there are no, nor will there, for so long as any of Borrower's
Liabilities remain outstanding, be, any Hazardous Materials (as
hereinafter defined) generated, released, stored, buried or deposited
over, beneath, in or upon the Property except as such Hazardous
Materials may be required to be used, stored or transported in
connection with the permitted uses of the Property and then only to the
extent permitted by law after obtaining all necessary permits and
licenses therefor or, if not permitted by law, then to the extent
non-compliance with applicable law is permitted by the Loan Agreement.
For purposes of this Deed of Trust, "HAZARDOUS MATERIALS" shall mean
and include any asbestos containing materials, polychlorinated
biphenyls ("PCBS"), petroleum products, lead based paint, radioactive
materials and any other hazardous, special or toxic materials, wastes
and substances which are defined, determined or identified as such in
any federal, state or local laws, rules, regulations, ordinances,
orders, codes, statutes or guidelines in each case as amended (whether
now existing or hereafter enacted or promulgated) including, without
limitation, the Recourse Conservation and Recovery Act (42 U.S.C. Sec.
6901 et seq.), Toxic Substances Control Act (15 U.S.C. Sec. 2601),
Clean Air Act (42 U.S.C. Sec. 7401 et seq.), Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Sec.
9601 et seq.) and any law, statute, rule or ordinance of the State of
West Virginia and any other governmental entity with jurisdiction over
the Mortgaged Property, or any part thereof, concerning such Hazardous
Materials or any judicial or administrative interpretation of such
laws, rules, regulations. Such laws, statutes, rules, ordinances and
regulations are hereinafter collectively referred to as the "HAZARDOUS
MATERIALS LAWS."
-8-
(b) Grantor shall, and Grantor shall cause all employees,
agents, contractors and subcontractors of Grantor and any other persons
from time to time present on or occupying the Property to, keep and
maintain the Property in compliance with, and not cause or knowingly
permit the Property to be in violation of, any applicable Hazardous
Materials Laws. Neither Grantor nor any employees, agents, contractors
or subcontractors of Grantor or any other persons occupying or present
on the Property shall use, generate, manufacture, store or dispose of
on, under or about the Property or transport to or from the Property
any Hazardous Materials, except as such Hazardous Materials may be
required to be used, stored or transported in connection with the
permitted uses of the Property and then only to the extent permitted by
law after obtaining all necessary permits and licenses therefor.
(c) Grantor shall immediately advise Agent in writing of: (i)
any notices received by Grantor (whether such notices are from the
Environmental Protection Agency, or any other federal, state or local
governmental agency or regional office thereof) of the violation or
potential violation occurring on or about the Property of any
applicable Hazardous Materials Laws; (ii) any and all enforcement,
cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened pursuant to any Hazardous Materials
Laws; and (iii) all claims made or threatened by any third party
against Grantor or the Property relating to damage, contribution, cost
recovery compensation, loss or injury resulting from any Hazardous
Materials (the matters set forth in clauses (i), (ii) and (iii) above
are hereinafter referred to as "HAZARDOUS MATERIALS CLAIMS"). Agent
shall have the right but not the obligation to join and participate in,
as a party if it so elects, any legal proceedings or actions initiated
in connection with any Hazardous Materials Claims and Grantor shall pay
to Agent, upon demand, all attorneys' and consultants' fees incurred by
Agent in connection therewith.
(d) Grantor shall be solely responsible for, and shall
indemnify and hold harmless Agent and Xxxxxxx, and the directors,
officers, employees, agents, successors and assigns of each of them,
from and against any loss, damage, cost, expense or liability directly
or indirectly arising out of or attributable to the use, generation,
storage, release, threatened release, discharge, disposal or presence
(whether prior to or during the term of the Loan or otherwise and
regardless of by whom caused, whether by Grantor or any predecessor in
title or any owner of land adjacent to the Property or any other third
party, or any employee, agent, contractor or subcontractor of Grantor
or any predecessor in title or any such adjacent land owner or any
third person) of Hazardous Materials on, under or about the Property;
including, without limitation: (i) claims of third parties (including
governmental agencies) for damages, penalties, losses, costs, fees,
expenses, damages, injunctive or other relief; (ii) response costs,
clean-up costs, costs
-9-
and expenses of removal and restoration, including fees of attorneys
and experts, and costs of determining the existence of Hazardous
Materials and reporting same to any governmental agency; and (iii) any
and all expenses or obligations, including attorneys' fees, incurred
at, before or after any trial or appeal therefrom whether or not
taxable as costs, including, without limitation, attorneys' fees,
witness fees, deposition costs, copying and telephone charges and other
expenses. The obligations of Grantor under this subsection shall
survive any of the foreclosure of this Deed of Trust, the repayment of
Borrower's Liabilities, or other satisfaction of the indebtedness
secured by this Deed of Trust, whether by deed in lieu of foreclosure
or otherwise.
(e) Any loss, damage, cost, expense or liability incurred by
Agent or Lenders as a result of a breach or misrepresentation by
Grantor or for which Grantor is responsible or for which Grantor has
indemnified Agent and Lenders shall be paid to Agent or Lenders, as the
case may be, on demand, and, failing prompt reimbursement, such amounts
shall, together with interest thereon at the Default Rate from the date
incurred by Agent or Lenders, as the case may be, until paid by
Xxxxxxx, be added to Borrower's Liabilities, be immediately due and
payable and be secured by the lien of this Deed of Trust and the other
Loan Instruments.
ARTICLE TWO
DEFAULTS
2.1. EVENT OF DEFAULT. The term "EVENT OF DEFAULT," wherever
used in this Deed of Trust, shall mean any one or more of the following events:
(a) The failure by Grantor to keep, perform, or observe any
covenant, condition or agreement on the part of Grantor in this Deed of
Trust and such failure is not cured to Agent's satisfaction within
fifteen (15) days after the sooner to occur of Grantor's receipt of
notice of such breach from Agent or the date on which such failure or
neglect first becomes known to any officer of Grantor, except for any
occurrence described in the Loan Agreement for which a different grace
or cure period is specified or which constitutes an immediate "Event of
Default" under and as defined in the Loan Agreement, in which event the
Loan Agreement will control.
(b) The occurrence of an "Event of Default" under and as
defined in the Loan Agreement or any of the other Loan Instruments.
-10-
ARTICLE THREE
REMEDIES
3.1. ACCELERATION OF MATURITY; COLLECTION. If an Event of
Default shall have occurred, Agent may declare all Borrower's Liabilities to be
immediately due and payable, and thereupon collect Borrower's Liabilities by
proper action, foreclosure of this Deed of Trust, or any other equitable
proceeding.
3.2. POSSESSION AND OPERATION OF PROPERTY. If an Event of
Default shall have occurred, in addition to all other rights herein conferred,
Agent may have a receiver appointed or cause Trustee to enter on the Property,
either in person or by agent, and take possession and charge of the Property,
collect the Rents and have a receiver appointed for such purposes.
3.3. FORECLOSURE. After Xxxxxxxx's Liabilities have been
accelerated, Trustee, upon the written request of Agent, shall foreclose upon
and sell the Property for cash in hand on day of sale to satisfy the Borrower's
Liabilities in accordance with applicable provisions of West Virginia law. From
the proceeds of such sale, Trustee shall pay, first the costs and expenses of
executing this trust including the reasonable legal fees and other reasonable
expenses of Agent, Lenders and Trustee, but Trustee shall be entitled to no
commission; second, to Agent and/or Lenders all sums paid for taxes, insurance,
repairs and all other costs and expenses incurred or paid under the provisions
of this Deed of Trust, together with interest thereon at the Default Rate, from
the date of payment; third, to Agent and/or Lenders the full amount due and
unpaid on Xxxxxxxx's Liabilities; and fourth, the balance, if any, to Grantor,
its successors and assigns, upon delivery of and surrender to the purchasers of
possession of the Property, less the expense, if any, of obtaining such
possession. If foreclosure proceedings are instituted but not completed, Trustee
shall be reimbursed for all reasonable costs and expenses incurred by it in
commencing such proceedings. Any sale may be adjourned from time to time by oral
proclamation by Trustee. Agent and Trustee shall also have all rights, remedies
and powers of a secured party under the Uniform Commercial Code of West
Virginia, as to personal property, fixtures and other applicable portions of the
Property.
3.4. FORECLOSURE NOTICE. A copy of any notice of foreclosure
sale and any other notices hereunder shall be served on Grantor by certified
mail, return receipt requested, at the address for notice provided in Section
4.2 herein or at such other address as may be given to Agent in writing by
Grantor subsequent to the execution and delivery of this Deed of Trust. Any
notice of a subordinate lien, any notice of other liens made pursuant to W. Va.
Code ss. 38-1-14 or other notice may be served on Agent at its address on the
first page of this Deed of Trust.
3.5. ACTION OF TRUSTEE. Trustee may act in the execution of
this trust, by agent or attorney. It is not necessary for Trustee to be
personally present at any foreclosure sale.
-11-
3.6. SUBSTITUTION OF TRUSTEE. Agent may from time to time, for
any reason or for no reason, substitute another Trustee, corporation or person,
in place of the Trustee herein named. Upon each such appointment, the
substituted Trustee shall be vested with all the rights, titles, interests,
powers, duties and trusts conferred upon the Trustee herein named. Each
appointment and substitution shall be evidenced by an instrument in writing,
executed and acknowledged by Agent, which when recorded in the office of the
Clerk of the County Commission of Xxxxxxx County, shall be conclusive proof of
the proper substitution and appointment and notice to all parties in interest.
3.7. PERSONAL PROPERTY AND FIXTURES. If an Event of Default
shall have occurred and be continuing, Agent shall have all rights and remedies
of a secured party under the Uniform Commercial Code of West Virginia, including
the right to sell it at public or private sale or otherwise dispose of, lease or
use it, without regard to preservation of the Property or its value and without
the necessity of a court order.
3.8. REMEDIES CUMULATIVE. No right, power or remedy conferred
upon or reserved to Agent or Lenders by the Notes, the Loan Agreement, this Deed
of Trust or any other Loan Instrument or any instrument evidencing or securing
Borrower's Liabilities is exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy given hereunder or
under the Notes, the Loan Agreement or any other Loan Instrument or any
instrument evidencing or securing Borrower's Liabilities, or now or hereafter
existing at law, in equity or by statute.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
4.1. HEIRS, SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES.
Whenever Grantor, Agent or Lenders are named or referred to herein, heirs and
successors and assigns of such person or entity shall be included, and all
covenants and agreements contained in this Deed of Trust shall bind the
successors and assigns of Grantor, including any subsequent owner of all or any
part of the Property and inure to the benefit of the successors and assigns of
Agent and Lenders.
4.2. NOTICES. Except as specifically set forth herein, all
notices, requests, reports, demands or other instruments required or
contemplated to be given or furnished under this Deed of Trust to Grantor or
Agent shall be directed to Grantor or Agent, as the case may be, in the manner
and at the addresses for notice set forth in the Loan Agreement.
4.3. HEADINGS. The headings of the articles, sections,
paragraphs and subdivisions of this Deed of Trust are for convenience only, are
not to be considered a part hereof, and shall not limit, expand or otherwise
affect any of the terms hereof.
-12-
4.4. INVALID PROVISIONS. In the event that any of the
covenants, agreements, terms or provisions contained in this Deed of Trust shall
be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein (or the
application of the covenant, agreement, term held to be invalid, illegal or
unenforceable, to persons or circumstances other than those in respect of which
it is invalid, illegal or unenforceable) shall be in no way affected, prejudiced
or disturbed thereby.
4.5. CHANGES. Neither this Deed of Trust nor any term hereof
may be released, changed, waived, discharged or terminated orally, or by any
action or inaction, but only by an instrument in writing signed by the party
against which enforcement of the release, change, waiver, discharge or
termination is sought.
4.6. GOVERNING LAW. Except with respect to the creation,
perfection, priority and enforcement of the lien and security interest created
hereunder, all of which shall be construed, interpreted, enforced and governed
by the laws of the State of West Virginia, the validity and interpretation of
this Deed of Trust shall be governed by and in accordance with the internal laws
of the State of Illinois, without regard to conflicts of law principles.
4.7. LIMITATION OF INTEREST. The provisions of the Loan
Agreement regarding the payment of lawful interest are hereby incorporated
herein by reference.
4.8. FUTURE ADVANCES. THIS IS A CREDIT LINE DEED OF TRUST FOR
THE PURPOSES OF X.XX. CODE Sec. 38-1-14 AND SECURES AN AGGREGATE MAXIMUM
PRINCIPAL AMOUNT NOT TO EXCEED $200,000,000, and this Deed of Trust is also
security for the payment of interest on the Loans and for the payment of taxes,
insurance premiums and other obligations, including interest thereon, undertaken
by Agent and/or Lenders pursuant to the provisions of this Deed of Trust or the
Loan Agreement or by Trustees under this Deed of Trust. This Deed of Trust
secures future advances that are intended to be obligatory which Agent and/or
Lenders have agreed to make in accordance with the provisions of the Loan
Agreement and therefore the principal amount secured hereby may increase or
decrease from time to time.
4.9. INTENTIONALLY DELETED.
4.10. LAST DOLLAR. The lien of this Deed of Trust shall remain
in effect until the last dollar of Xxxxxxxx's Liabilities is paid in full and
all obligations of Agent and Lenders under the Loan Agreement have been
terminated.
4.11. RELEASE. Upon full payment and satisfaction of
Xxxxxxxx's Liabilities and the termination of all obligations of Agent and
Lenders under the Loan Agreement, Agent shall issue to Grantor an appropriate
release or satisfaction in recordable form.
4.12. TIME OF THE ESSENCE. Time is of the essence with respect
to this Deed of Trust and all the provisions hereof.
-13-
4.13. LOAN AGREEMENT. The Loans are governed by terms and
provisions set forth in the Loan Agreement and in the event of any conflict
between the terms of this Deed of Trust and the terms of the Loan Agreement, the
terms of the Loan Agreement shall control.
4.14. REPLACEMENT OF NOTES. Any one or more of the financial
institutions which are or become a party to the Loan Agreement as Lenders may
from time to time be replaced and, accordingly, one or more of the Notes may
from time to time be replaced, provided that the terms of the Notes following
such replacement, including the principal amount evidenced thereby, shall remain
the same. As the indebtedness secured by this Deed of Trust shall remain the
same, such replacement of the Notes shall not be construed as a novation and
shall not affect, diminish or abrogate Grantor's liability under this Deed of
Trust or the priority of this Deed of Trust.
-14-
IN WITNESS WHEREOF, Xxxxxxx has caused this instrument to be
executed by its duly authorized officer as of the day and year first above
written.
WEIRTON STEEL CORPORATION,
a Delaware corporation
By_______________________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
-15-
ACKNOWLEDGMENT
STATE OF WEST VIRGINIA,
COUNTY OF XXXXXXX, TO-WIT:
The foregoing instrument was acknowledged before me this
_______ day of _________________, 2002, by Xxxx X. Xxxxxx, Vice President and
Chief Financial Officer of WEIRTON STEEL CORPORATION, a Delaware corporation, on
behalf of said corporation.
My Commission Expires: ________________
________________________________
Notary Public
[NOTARIAL SEAL]
THIS INSTRUMENT WAS PREPARED BY
AND AFTER RECORDING RETURN TO:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx, Kohn, Bell, Black,
Xxxxxxxxxx & Xxxxxx, Ltd.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
-16-
