EXHIBIT 10.31
PURCHASE AGREEMENT
DATED AS OF OCTOBER 26, 2001
AMONG
FW HOLDINGS, INC.,
AS SELLER,
MABCO STEAM COMPANY, LLC,
AS PURCHASER,
AND
WEIRTON STEEL CORPORATION,
AS GUARANTOR
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), dated as of October 26, 2001,
is entered into by and among FW Holdings, Inc., a Delaware corporation, as the
Seller (the "Seller"), MABCO Steam Company, LLC, a Delaware limited liability
company, as Purchaser (the "Purchaser"), and Weirton Steel Corporation, a
Delaware corporation, as Guarantor (the "Guarantor").
W I T N E S S E T H:
WHEREAS, Seller is the owner of the Facility, located on the Land more
particularly described on Exhibit A attached hereto, and the Energy Assets more
particularly described on Exhibit B attached hereto (collectively, the
"Property"); and
WHEREAS, the parties intend for the Purchaser to acquire the Property, and
for the parties to enter into certain easements and other agreements with
respect to the Property, on the terms and conditions provided in this Agreement;
and
WHEREAS, to induce the Purchaser to acquire the Property, the Purchaser
has required the Guarantor to guaranty all obligations of the Seller under this
Agreement; and
WHEREAS, Purchaser, Seller, and Guarantor desire to memorialize the terms
and conditions by which the sale of the Property will occur.
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
SECTION 1.1 Certain Terms Defined. Unless the context shall otherwise
clearly require, capitalized terms used and not defined herein shall have the
meanings assigned thereto in Appendix A hereto for all purposes hereof and the
rules of interpretation set forth in Appendix A shall apply to this Agreement.
ARTICLE II
CLOSING
SECTION 2.1 Closing Date. The Closing Date for the transactions
contemplated by this Agreement shall be deemed to have occurred as of the date
of this Agreement, subject to satisfaction of the following conditions
precedent:
(a) Agreement. This Agreement shall have been duly authorized, executed
and delivered by the Purchaser, Seller and Guarantor.
(b) Purchase Money Note. The Purchase Money Note shall have been duly
authorized, executed and delivered by the Purchaser to the Seller.
(c) Supply Agreement. The Supply Agreement in the form attached hereto as
Exhibit C (the "Supply Agreement") shall have been duly authorized, executed and
delivered by the Purchaser and the Guarantor, which will be assigned by the
Purchaser to the Seller.
(d) Appraisal. The Purchaser shall have received an appraisal of the
Property in form and substance reasonably satisfactory to the Purchaser (the
"Appraisal") setting forth that (i) the "in place in use" value of the Appraised
Xxxxxx Xxxxxxx Plant and the Appraised Generation Assets is approximately $30.6
million and $8.0 million, respectively, and (ii) the orderly liquidation value
of the Appraised Xxxxxx Xxxxxxx Plant and the Appraised Generation Assets is
approximately $1.6 million.
(e) Environmental Audit. The Purchaser shall have received an
Environmental Audit regarding the Property dated no earlier than six (6) months
prior to the Closing Date in form and substance reasonably satisfactory to the
Purchaser.
(f) Property Survey and Title Insurance. On or prior to the Closing Date,
the Seller shall have delivered to the Purchaser, an American Land Title
Association ("ALTA")/1992 (Urban) Survey of the Land and a commitment to deliver
an ALTA Form B-1992 extended owners title insurance policy covering the Property
(with exceptions for Permitted Property Liens, including those items set forth
on Exhibit D attached hereto) in favor of the Purchaser in a form reasonably
acceptable to the Purchaser and the Title Company, such policy to be in an
amount not less than the Purchase Price with such endorsements issued by the
Title Company as may be reasonably requested by the Purchaser.
(g) Representations and Warranties. On the Closing Date, the
representations and warranties of the Purchaser, Seller and Guarantor set forth
in this Agreement and the other Operative Documents (or in certificates
delivered pursuant thereto) executed by the Purchaser, Seller and the Guarantor
shall be true and correct in all material respects as though made on and as of
such date, except to the extent such representations or warranties relate solely
to an earlier date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date.
(h) Xxxx of Sale/Deed/Easement Agreement. Each of the Xxxx of Sale (in the
form attached hereto as Exhibit E), the Deed (in the form attached hereto as
Exhibit F) and the Easement Agreement (in the form attached hereto as Exhibit G)
shall have been duly authorized, executed and delivered by the parties thereto.
(i) Other Conveyance Documents. An (A) Owner's Affidavit, (B) a
Certificate and Affidavit of Non-Foreign Status, (C) a completed 1099-S Request
for Taxpayer Identification Number and Certification and Acknowledgment, and (D)
any other documents reasonably requested by the Purchaser or the Title Company,
all in a form of, and on the terms and conditions reasonably acceptable to, the
Purchaser and the Title Company.
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(j) The Seller's Resolutions and Incumbency Certificate, etc. The Seller
shall have delivered to the Purchaser (x) a certificate of its Secretary or an
Assistant Secretary attaching and certifying as to (A) resolutions of the Seller
duly authorizing the execution, delivery and performance by it of this Agreement
and the other Operative Documents to which it is or will be a party, (B) its
charter documents, together with all amendments thereto, and (C) the incumbency
and signature of persons authorized to execute and deliver on its behalf this
Agreement and the other Operative Documents to which it is a party, (y) a
certificate of good standing, existence or its equivalent, dated no earlier than
thirty (30) days prior to the Closing Date, issued by the appropriate
governmental officer in its jurisdiction of incorporation, and (z) any other
documents reasonably requested by Purchaser or the Title Company necessary to
evidence that the Seller has the requisite power and authority to enter into and
perform under this Agreement and the other Operative Documents to which it is a
party, and to consummate the purchase and sale of the Property.
(k) The Guarantor's Resolutions and Incumbency Certificate, etc. The
Guarantor shall have delivered to the Purchaser (x) a certificate of its
Secretary or an Assistant Secretary attaching and certifying as to (A)
resolutions of the Guarantor duly authorizing the execution, delivery and
performance by it of this Agreement and the other Operative Documents to which
it is or will be a party, (B) its charter documents, together with all
amendments thereto, and (C) the incumbency and signature of persons authorized
to execute and deliver on its behalf this Agreement and the other Operative
Documents to which it is a party, (y) a certificate of good standing, existence
or its equivalent, dated no earlier than thirty (30) days prior to the Closing
Date, issued by the appropriate governmental officer in its jurisdiction of
incorporation, and (z) any other documents reasonably requested by Purchaser or
the Title Company necessary to evidence that the Guarantor has the requisite
power and authority to enter into and perform under this Agreement and the other
Operative Documents to which it is a party, and to consummate the purchase and
sale of the Property.
(l) The Purchaser's Resolutions and Incumbency Certificate, etc. The
Purchaser shall have delivered to the Guarantor and Seller (x) a certificate of
its Secretary or an Assistant Secretary attaching and certifying as to (A)
resolutions of the Purchaser duly authorizing the execution, delivery and
performance by it of this Agreement and the other Operative Documents to which
it is or will be a party, (B) its charter documents, together with all
amendments thereto, and (C) the incumbency and signature of persons authorized
to execute and deliver on its behalf this Agreement and the other Operative
Documents to which it is a party, (y) a certificate of good standing, existence
or its equivalent, dated no earlier than thirty (30) days prior to the Closing
Date, issued by the appropriate governmental officer in its jurisdiction of
incorporation, and (z) any other documents reasonably requested by Seller,
Guarantor or the Title Company necessary to evidence that the Purchaser has the
requisite power and authority to enter into and perform under this Agreement and
the other Operative Documents to which it is a party, and to consummate the
purchase and sale of the Property.
(m) Recordation of Deed and Easement Agreement. On or prior to the Closing
Date, the Purchaser shall have received evidence or a commitment reasonably
satisfactory to it that (i) each of the Deed and the Easement Agreement has
been, or are being, recorded in a manner sufficient to vest in Purchaser good
and insurable title to the Facility pursuant to the Deed and good and insurable
interest in all easements set forth in the Easement Agreement, in each case
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subject to Permitted Property Liens, and (ii) that the Title Company has issued,
or has agreed to issue the title insurance policy required by Section 2.1(f)
hereof.
(n) Non-Disturbance Agreement. The Non-Disturbance Agreement in the form
attached hereto as Exhibit I shall have been duly authorized, executed and
delivered by the Purchaser, the Seller and the Guarantor.
All documents and instruments required to be delivered pursuant to this
Section 2.1 shall be or be deemed to be delivered at the offices of Xxxxxxxxxxx
& Xxxxxxxx LLP, Xxxxx X. Xxxxxx Building, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, or at such other location in Allegheny County, Pennsylvania
as may be determined by the Purchaser and Seller.
ARTICLE III
PURCHASE OF PROPERTY
SECTION 3.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement and the other Operative Documents, on the Closing Date, the following
shall occur:
(a) The Purchaser shall acquire from Seller (i) good title to the Energy
Assets pursuant to the Xxxx of Sale, (ii) good and insurable title to the
Facility pursuant to the Deed and the Xxxx of Sale, and (iii) a good, valid and
insurable interest in all easements set forth in the Easement Agreement, in each
case subject to Permitted Property Liens. Purchaser shall pay to Seller in
connection with the purchase of the Property, the Purchase Price as provided in
Section 3.2.
(b) Purchaser and Guarantor shall enter into the Supply Agreement.
SECTION 3.2 Purchase Price. The purchase price shall be $30,000,000.00
(the "Purchase Price"). The Purchase Price shall be paid as follows: (i)
immediately available funds of no less than $0.00 and (ii) a purchase money
note, in substantially the form set forth in Exhibit H attached hereto (the
"Purchase Money Note") for the balance.
ARTICLE IV
REPRESENTATIONS OF PURCHASER
SECTION 4.1 Representations of the Purchaser. The Purchaser represents and
warrants to the Seller, as of the Closing Date, that:
(a) Power and Authority. The Purchaser has the requisite power and
authority to enter into and perform under this Agreement and the other Operative
Documents to which it is a party.
(b) Organization. The Purchaser is a limited liability company validly
organized and existing and in good standing under the laws of the jurisdiction
of its incorporation or creation, which jurisdiction is located within the
United States.
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(c) Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Purchaser of this Agreement and the other Operative Documents
to which it is a party are within the Purchaser's organizational powers, have
been duly authorized by all necessary organizational action, and do not
contravene the Purchaser's Constituent Documents or contravene any Applicable
Law affecting the Purchaser.
(d) Binding Effect. This Agreement constitutes the legal, valid and
binding agreement of the Purchaser and each of the other Operative Documents to
which it is a party, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the Purchaser, in
each case enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
(e) Governmental Approvals. No Governmental Action by any Governmental
Authority having jurisdiction over the Purchaser is required to authorize or is
required in connection with the execution and delivery by the Purchaser of this
Agreement or any other Operative Documents to which it is a party.
(f) No Business Operations. Purchaser has not engaged in any business
operations, and has not entered into any contracts, agreements or indentures, or
incurred any other material obligations, other than as expressly contemplated
pursuant to this Agreement and the other Operative Documents. Purchaser has no
Subsidiaries, and owns no interest in any entity or business venture.
ARTICLE V
REPRESENTATIONS OF GUARANTOR
SECTION 5.1 Representations of the Guarantor. The Guarantor represents and
warrants to the Purchaser, as of the Closing Date, that:
(a) Power and Authority. The Guarantor has the requisite power and
authority to enter into and perform under this Agreement and the other Operative
Documents to which it is a party.
(b) Corporate Existence and Power. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and the Guarantor is in good standing as a foreign corporations
authorized to do business in each jurisdiction where the nature of its
activities or the ownership of its properties makes such qualification or
licensing necessary, other than jurisdictions in which failure to be so
qualified would not have a material adverse effect on the Guarantor.
(c) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Guarantor of this Agreement and each
other Operative Document to which it is a party are within its powers, have been
duly authorized by all necessary corporate action, including, if required,
stockholder action on behalf of the Guarantor, require no action by or in
respect of, or filing with, any Governmental Authority and do not violate any
provision of Applicable Law or of the Constituent Documents of the Guarantor.
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(d) Validity; Binding Effect. This Agreement and the other Operative
Documents to which the Guarantor is a party have been duly executed and
delivered by Guarantor. This Agreement constitutes the legal, valid and binding
agreement of the Guarantor and each of the other Operative Documents to which it
is a party, when executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of the Guarantor, in each case
enforceable in accordance with its terms except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
(e) Reports. Copies of all reports, registration statements and other
filings, together with any amendments thereto, filed by the Guarantor with the
Securities and Exchange Commission (the "SEC") since December 31, 1999 through
the date of this Agreement (the "Company SEC Reports"), have been made available
to the Purchaser. As of the respective dates of their filing with the SEC, the
Company SEC Reports complied, and all such reports, registration statements and
other filings to be filed by the Guarantor with the SEC prior to the Closing
Date will comply, in all material respects with the applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the SEC promulgated thereunder, and did not at the time they were
filed with the SEC, or will not at the time they are filed with the SEC, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(f) Governmental Approvals. No Governmental Action by any Governmental
Authority having jurisdiction over Guarantor or the Property is required to
authorize or is required in connection with the execution and delivery by
Guarantor of this Agreement or any other Operative Documents to which it is a
party.
(g) Location of Chief Executive Office and Principal Place of Business,
etc. The Guarantor's and Seller's current chief executive office and principal
place of business of the Guarantor are at the addresses set forth on Schedule
5.1(g) hereto as its "Chief Executive Office and Principal Place of Business."
(h) Investment Company Act; Public Utility Holding Company. Neither the
Guarantor nor any of its Subsidiaries (including, without limitation, Seller) is
an "investment company" registered or required to be registered under the
Investment Company Act, or a company under the "control" of an "investment
company" as those terms are defined in such Act. Further, neither the Guarantor
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", or a "subsidiary
company" of a "holding company" within the meaning of the PUHCA.
(i) Actions against the Guarantor. There are no actions, suits or
proceedings pending or to Guarantor's knowledge threatened against, by or
affecting the Guarantor which affect title to the Property or which question the
validity or enforceability of this Agreement or any other Operative Document or
of any action taken by the Guarantor under this Agreement or any other Operative
Document, in any court or before any Governmental Authority, domestic or
foreign.
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(j) Information about the Property. All information and data listed on
Schedule 5.1(i) with respect to the Property is true, correct, and complete in
all material respects as of the date as of which such information and data are
dated or certified.
Guarantor acknowledges and agrees that no prior examination or investigation of
the Property or of the operation of the Property by or on behalf of Purchaser
shall in any way modify, affect or diminish Guarantor's obligations under the
representations, warranties, covenants and agreements set forth in this
Agreement.
ARTICLE VI
REPRESENTATIONS OF SELLER
SECTION 6.1 Representations of the Seller. The Seller represents and
warrants to the Purchaser, as of the Closing Date, that:
(a) Power and Authority. The Seller has the requisite power and authority
to enter into and perform under this Agreement and the other Operative Documents
to which it is a party.
(b) Corporate Existence and Power. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and the Seller is in good standing as a foreign corporation authorized
to do business in each jurisdiction where the nature of its activities or the
ownership of its properties makes such qualification or licensing necessary,
other than jurisdictions in which failure to be so qualified would not have a
material adverse effect on the Seller.
(c) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Seller of this Agreement and each
other Operative Document to which it is a party are within its powers, have been
duly authorized by all necessary corporate action, including, if required,
stockholder action on behalf of the Seller, require no action by or in respect
of, or (except with respect to the filing of UCC-1s and mortgages or deeds of
trust) filing with, any Governmental Authority and do not violate any provision
of Applicable Law or of the Constituent Documents of the Seller.
(d) Validity; Binding Effect. This Agreement and the other Operative
Documents to which the Seller is a party have been duly executed and delivered
by Seller. This Agreement constitutes the legal, valid and binding agreement of
the Seller and each of the other Operative Documents to which it is a party,
when executed and delivered in accordance with this Agreement, will constitute a
valid and binding obligation of the Seller, in each case enforceable in
accordance with its terms except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
(e) Governmental Approvals. No Governmental Action by any Governmental
Authority having jurisdiction over Seller or the Property is required to
authorize or is required in connection with the execution and delivery by Seller
of this Agreement or any other Operative Document to which it is a party.
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(f) Location of Chief Executive Office and Principal Place of Business,
etc. The Guarantor's and Seller's current chief executive office and principal
place of business of the Guarantor are at the addresses set forth on Schedule
5.1(g) hereto as its "Chief Executive Office and Principal Place of Business."
(g) No Business Operations. Seller has not engaged in any business
operations, and has not entered into any contracts, agreements or indentures, or
incurred any other material obligations, other than as expressly contemplated
pursuant to this Agreement and the other Operative Documents. Seller has no
Subsidiaries, and owns no interest in any entity or business venture. Seller is
not an "investment company" registered or required to be registered under the
Investment Company Act, or a company under the "control" of an "investment
company" as those terms are defined in such Act. Further, Seller is not a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company", or a "subsidiary company" of a "holding
company" within the meaning of the PUHCA.
(h) Actions against the Seller. There are no actions, suits or proceedings
pending or to Seller's knowledge threatened against, by or affecting the Seller
which affect title to the Property or which question the validity or
enforceability of this Agreement or any other Operative Document or of any
action taken by the Seller under this Agreement or any other Operative Document,
in any court or before any Governmental Authority, domestic or foreign.
(i) Title to the Property. The Seller has good and insurable title to the
Facility and the Energy Assets, subject to Permitted Property Liens; and,
without limiting the generality of the foregoing, Seller owns all of the Energy
Assets and none of the Energy Assets are leased.
(j) Encroachments; Zoning. To Seller's knowledge, there are no
encroachments on the Land that would materially adversely effect the Facility
and all buildings that are a part of the Facility are situated entirely within
the boundaries of the Land and within applicable building lines. The Land is
zoned in the zoning classification "M-1 Industrial" under the applicable zoning
ordinance of City of Weirton, West Virginia.
(k) Flood Plain. No portion of the Land, excluding Appurtenant Rights, is
located within any Special Flood Hazard Area designated by the Federal Emergency
Management Agency, or in any area similarly designated by any Governmental
Authority; no portion of the Land meets the definition of "wetlands" codified at
40 C.F.R. part 230.3(t), or has been similarly designated by any Governmental
Authority; and no portion of the Land, excluding Appurtenant Rights, constitutes
"wetlands" that have been filled, whether or not pursuant to appropriate
permits.
(l) Use Restrictions; Assessments. The Facility is not subject to any use,
development or occupancy restrictions (except those imposed by applicable zoning
and subdivision laws and regulations), special taxes and assessments or utility
"tap-in" fees (except those generally applicable throughout the tax district in
which the Facility is located), or charges or restrictions, whether existing of
record or arising by operation of law, unrecorded agreement, the passage of time
or otherwise (other than the Permitted Property Liens), except to the extent
that any such restrictions, taxes, assessments, fees, or charges would not have
a material adverse effect on the Facility. The Facility is not and has not been
subject to any exemption from ad
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valorem taxes that will result in imposition of any tax or penalty upon the
transfer of title at Closing.
(m) Compliance. The Facility is not constructed, occupied, used or
operated in violation of, is not otherwise in violation of, and Seller has
received no notice of any violations or potential violation of any Applicable
Law or any private restrictive covenants affecting the Facility, except to the
extent that any such violations would not have a material adverse effect on the
Facility. All Governmental Approvals required by any Governmental Authority for
the continued use, occupancy and operation of the Facility have been obtained,
are paid for, and are free of restrictions, except to the extent that any such
restrictions or any failure to obtain a Governmental Approval would not have a
material adverse effect on the Facility.
(n) Condemnation. There are no pending, or to Seller's knowledge
threatened or contemplated, condemnation actions involving all or any portion of
the Facility or any interest therein; and, to Seller's knowledge, there are no
existing, proposed or contemplated plans to widen, modify or realign any public
rights-of-way located adjacent to any portion of the Land.
(o) Utilities; Access. Upon filing of the Easement Agreement, all
utilities (including, without limitation, water, storm and sanitary sewer,
electricity, gas, steam and telephone) shall be available on the Land through
private easements or properly dedicated public easements in capacities
sufficient to serve and operate the Facility, and access to the Land from
streets and roads adjoining the Land is not limited or restricted.
(p) Agreements Regarding the Property. Except as set forth on Schedule
6.1(p), there are no material management, maintenance, service or other
contracts presently in force with respect to all or any portion of the Facility.
There are no material leases, licenses or other agreements for the use,
occupancy or possession presently in force with respect to all or any portion of
the Facility.
(q) Improvements. The improvements comprising the Facility are in good
order and repair, and in a good, safe, substantial condition, free from material
defects, all plumbing, heating, electrical and air conditioning systems and
equipment and systems therein are in good order and repair and operating
condition, the improvements comprising the Facility are constructed and
completed in compliance with accepted standards of good materials and
workmanship, and all electrical, plumbing, heating and air-conditioning and
exterior drainage systems, in or on the Facility are in good condition and
working order and there is no subsidence or other soil condition that does or
may in the future materially adversely affect the Facility.
Seller acknowledges and agrees that no prior examination or investigation of the
Property or of the operation of the Property by or on behalf of Purchaser shall
in any way modify, affect or diminish Seller's obligations under the
representations, warranties, covenants and agreements set forth in this
Agreement.
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ARTICLE VII
PAYMENT OF CERTAIN EXPENSES
SECTION 7.1 Transaction Expenses. On the Closing Date, the Seller shall
pay, or cause to be paid, all Transaction Expenses.
ARTICLE VIII
OTHER COVENANTS AND AGREEMENTS
SECTION 8.1 Covenants of Seller. The Seller hereby agrees that it will
perform the obligations set forth in this Section 8.1.
(a) Further Assurances. Seller shall execute and deliver, or cause to be
executed and delivered, to the Purchaser from time to time, promptly upon
request therefor, any and all other and further instruments (including
correction instruments as appropriate) that may be reasonably requested by the
Purchaser to cure any deficiency in the execution and delivery of this Agreement
or any other Operative Document to which it is a party.
(b) Employees. Seller expressly acknowledges that Purchaser shall not be
obligated to assume any responsibility for any employee of Seller employed at
the Facility (the "Facility Employees").
SECTION 8.2 Covenants of Guarantor. The Guarantor hereby agrees that it
will perform the obligations set forth in this Section 8.2.
(a) Further Assurances. Guarantor shall execute and deliver, or cause to
be executed and delivered, to the Purchaser from time to time, promptly upon
request therefor, any and all other and further instruments (including
correction instruments as appropriate) that may be reasonably requested by the
Purchaser to cure any deficiency in the execution and delivery of this Agreement
or any other Operative Document to which it is a party.
(b) Employees. Guarantor expressly acknowledges that Purchaser shall not
be obligated to assume any responsibility for any Facility Employees. Guarantor
shall be responsible for all employee costs for the Facility Employees, whether
applicable to or owing for periods prior to, on, or after the Closing Date. For
the purposes of this Agreement, "employee costs" shall mean and include all
fees, wages, salaries and other compensation, and the costs and expenses of
workers compensation insurance, vacation pay, sick pay, pension, profit sharing,
health insurance, other insurance, other employee benefits, social security
taxes, unemployment insurance, and all other federal, state and local employment
taxes.
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ARTICLE IX
GUARANTY BY GUARANTOR
SECTION 9.1 Guaranty by Guarantor.
(a) For valuable consideration, receipt of which is acknowledged, and to
induce Purchaser to enter into this Agreement, Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Purchaser, and agrees fully to
pay, perform and discharge, as and when payment, performance and discharge are
due, all of the covenants, obligations and liabilities of Seller under this
Agreement and all amendments, modifications, renewals, extensions, supplements,
substitutions and replacements of this Agreement (the "Purchase Agreement
Obligations"). The obligations of Guarantor under the guaranty set forth in this
Section 9.1 shall be absolute, unconditional and irrevocable and shall continue
and remain in full force and effect until all of the Purchase Agreement
Obligations have been fully paid, performed and discharged. The guaranty
contained in this Section 9.1 is a guaranty of payment and not merely of
collection.
(b) The obligations of Guarantor under this Section 9.1 shall not be
affected, modified or impaired by the occurrence of any of the following events,
whether or not with notice to, or the consent of, Guarantor: (i) the waiver,
surrender, compromise, settlement, release or termination of any or all of the
Purchase Agreement Obligations; (ii) the failure to give notice to Guarantor of
the occurrence of an event of default under the Purchase Agreement Obligations;
(iii) the extension of the time for the payment, performance or discharge of any
or all of the Purchase Agreement Obligations or the acceptance or making of
compromises or other arrangements with Seller, realizing on any security, or
otherwise dealing with Seller, other parties and any security as Purchaser may
deem expedient; (iv) the amendment or modification (whether material or
otherwise) of this Agreement or the Purchase Agreement Obligations in any
respect; (v) any failure, omission, delay or lack on the part of Purchaser to
enforce, assert or exercise any right, power or remedy conferred on Purchaser
under this Agreement; (vi) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or adjustment of debts, or other similar
proceedings affecting Seller or Guarantor or any of the assets of either of
them; (vii) the release or discharge by operation of law of Seller from the
payment, performance or discharge of any or all of the Purchase Agreement
Obligations; or (viii) the release or discharge by operation of law of Guarantor
from any or all of the obligations of Guarantor under the guaranty set forth in
this Section 9.1. Guarantor acknowledges that Purchaser would not enter into
this Agreement without the guaranty set forth in this Section 9.1 and that
Purchaser is relying on the guaranty set forth in this Section 9.1.
(c) The obligations of Guarantor under the guaranty set forth in this
Section 9.1 are independent of the Purchase Agreement Obligations. Guarantor
agrees that Purchaser shall have the right to proceed against Guarantor directly
and independently of Seller. A separate action may be brought and prosecuted
against Guarantor whether or not an action is brought against Seller or Seller
is joined in any such action. Guarantor authorizes Purchaser and Seller, without
notice to, demand of, or consent from Guarantor and without releasing or
affecting Guarantor's liability under the guaranty set forth in this Section
9.1, from time to time to amend, modify, renew, extend, supplement or replace
this Agreement or the Purchase Agreement Obligations or otherwise change the
terms of this Agreement or the Purchase Agreement Obligations, to take and hold
security for the Purchase Agreement Obligations, and to enforce, waive,
surrender, impair, compromise or release any such security or any or all of the
Purchase Agreement Obligations or any person or entity liable for any or all of
the Purchase Agreement Obligations. Guarantor shall be and remain bound under
the guaranty set forth in this Section 9.1
11
notwithstanding any such act or omission by Seller or Purchaser. To the extent
permitted by Applicable Law, Guarantor waives all rights to require Purchaser to
proceed against Seller, to proceed against or exhaust any security held by
Purchaser, or to pursue any other remedy in Purchaser's power. Purchaser shall
have the right to exercise any right or remedy it may have against Seller or any
security held by Purchaser. Guarantor waives the right, if any, to the benefit
of, or to direct the application of, any security held by Purchaser. To the
extent permitted by Applicable Law, Guarantor waives (i) any defense arising out
of any alteration of the Purchase Agreement Obligations, (ii) any defense
arising out of the absence, impairment or loss of any right of reimbursement or
subrogation or other right or remedy of Guarantor against Seller or any security
held by Purchaser, and (iii) any defense arising by reason of any disability or
other defense of Seller or by reason of the cessation or reduction from any
cause whatsoever of the liability of Seller other than full payment, performance
and discharge of the Purchase Agreement Obligations. The cessation or reduction
of the liability of Seller for any reason other than full payment, performance
and discharge of the Purchase Agreement Obligations shall not release or affect
in any way the liability of Guarantor under the guaranty set forth in this
Section 9.1.
(d) If Seller becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar relief under
any present or future provision of the Federal Bankruptcy Code, or if such a
petition is filed against Seller, or Seller makes a general assignment for the
benefit of creditors, and in any such proceeding any or all of the Purchase
Agreement Obligations are terminated or rejected or any or all of the Purchase
Agreement Obligations are modified or abrogated, Guarantor agrees that
Guarantor's liability hereunder shall not thereby be affected or modified and
such liability shall continue in full force and effect as if no such action or
proceeding had occurred. The guaranty set forth in this Section 9.1 shall
continue to be effective or be reinstated, as the case may be, if any payment of
the Purchase Agreement Obligations must be returned by Purchaser upon the
insolvency, bankruptcy or reorganization of Seller, Guarantor, or otherwise, as
though such payment had not been made. Guarantor shall not seek to exercise any
rights of subrogation, reimbursement or indemnity arising from payments made by
Guarantor pursuant to this Section 9.1 until the full and complete payment or
performance and discharge of the Purchase Agreement Obligations.
(e) Guarantor assumes the responsibility for being and keeping Guarantor
informed of the financial condition of Seller and of all other circumstances
bearing upon the risk of failure to pay, perform or discharge any of the
Purchase Agreement Obligations which diligent inquiry would reveal, and
Guarantor agrees that Purchaser has no duty to advise Guarantor of information
known to Purchaser regarding such condition or any such circumstance. Guarantor
acknowledges that repeated and successive demands may be made and payments or
performance made hereunder in response to such demands as and when, from time to
time, Seller defaults in the payment, performance or discharge of the Purchase
Agreement Obligations. Notwithstanding any such payments and performance
hereunder, the guaranty set forth in this Section 9.1 shall remain in full force
and effect and shall apply to any and all subsequent defaults by Seller. It is
not necessary for Purchaser to inquire into the capacity, authority or powers of
Seller or the partners, directors, officers, employees or agents acting or
purporting to act on behalf of Seller, and all of the Purchase Agreement
Obligations made or created in reliance upon the purported exercise of such
powers shall be guaranteed hereunder.
12
(f) Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of
acceptance of the guaranty set forth in this Section 9.1. Guarantor also waives
its homestead exemption. Guarantor agrees to pay all costs and expenses,
including reasonable attorneys' fees, which are incurred by Purchaser in the
enforcement of the guaranty set forth in this Section 9.1. Guarantor hereby
expressly, irrevocably, fully and forever releases, waives and relinquishes any
and all right to trial by jury and any and all right to receive punitive,
exemplary and consequential damages from Purchaser (or any past, present or
future board member, trustee, director, officer, employee, agent,
representative, or advisor of Purchaser) in any claim, demand, action, suit,
proceeding or cause of action in which Purchaser and Guarantor are parties,
which in any way (directly or indirectly) arises out of, results from or relates
to any of the Purchase Agreement Obligations or the enforcement of the guaranty
set forth in this Section 9.1, in each case whether now existing or hereafter
arising and whether based on contract or tort or any other legal basis. The
guaranty set forth in this Section 9.1 shall bind and inure to the benefit of
Guarantor and Purchaser and their respective personal representatives, heirs,
successors and assigns.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 General Indemnification. The Seller agrees to assume
liability for, and to indemnify, protect, defend, save and keep harmless each
Indemnitee, on an After Tax Basis, from and against, any and all Claims that may
be imposed on, incurred by or asserted against such Indemnitee, whether or not
such Indemnitee shall also be indemnified as to any such Claim by any other
Person, arising out of any acts or omissions (whether by Guarantor, Seller or
any other Person) occurring on or before the Closing Date, in any way relating
to or arising out of:
(a) any injury or damage to Persons or property arising from the actions
or inactions of Seller or Guarantor (or their employees, agents, Affiliates, or
invitees);
(b) this Agreement, any other Operative Document or any of the
transactions contemplated thereby, and any amendment, modification or waiver in
respect thereof requested by Seller or Guarantor;
(c) the Property or any part thereof or interest therein;
(d) the purchase, design, construction, preparation, installation,
inspection, delivery, nondelivery, acceptance, rejection, ownership, management,
possession, operation, rental, lease, sublease, repossession, maintenance,
repair, alteration, modification, addition or substitution, storage, transfer of
title, redelivery, use, financing, refinancing, disposition, operation,
condition, sale, return or other disposition of all or any part of any interest
in the Property or the imposition of any Lien (or incurring of any liability to
refund or pay over any amount as a result of any Lien) thereon, including: (1)
Claims or penalties arising from any violation of Applicable Law or in tort (on
the basis of strict liability or otherwise), (2) latent or other defects,
whether or not discoverable, (3) any Claim based upon a violation or alleged
violation of the terms of any restriction, easement, condition or covenant or
other matter affecting title to the Property, and (4) any Claim for patent,
trademark or copyright infringement;
13
(e) the breach by the Seller or Guarantor of any covenant, representation
or warranty made by them or deemed made by them in this Agreement or any other
Operative Document or any certificate required to be delivered by this Agreement
or any other Operative Document; or
(f) the existence of any Lien other than Lessor Liens on or with respect
to the Property, title thereto, or any interest therein including any Liens
which arise out of the possession, use, occupancy, construction, repair or
rebuilding of the Property or by reason of labor or materials furnished or
claimed to have been furnished to the Seller or the Guarantor, or any of its
contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by the Seller or the Guarantor or modifications
constructed by the Seller or the Guarantor;
provided, however, that the Seller shall not be required to indemnify any
Indemnitee under this Section 10.1 for any Claim to the extent resulting
from the willful misconduct or negligence of such Indemnitee. It is
expressly understood and agreed that the indemnity provided for herein
shall survive the expiration or termination of and shall be separate and
independent from any remedy under any other Operative Document.
SECTION 10.2 Environmental Indemnity. Without limitation of the other
provisions of this Article X, the Seller hereby agrees to indemnify, hold
harmless and defend each Indemnitee from and against any and all claims
(including third party claims for personal injury or real or personal property
damage), losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings (including informal proceedings) and orders, judgments,
remedial action, requirements, enforcement actions of any kind, and all costs
and expenses incurred in connection therewith (including reasonable attorneys'
and/or paralegals' fees and expenses), including all costs incurred in
connection with any investigation or monitoring of site conditions or any
clean-up, remedial, removal or restoration work by any Governmental Authority,
arising out of any acts or omissions (whether by Guarantor, Seller or any other
Person) occurring on or before the Closing Date caused by:
(a) Contamination on or under the Property resulting in an Environmental
Condition, or any Release of any Hazardous Material on, under, from or onto the
Property,
(b) any Environmental Claim or any activity, including construction, that
was carried on or undertaken on or off the Property, and whether by the
Guarantor, the Seller or any predecessor in title or any employees, agents,
contractors or subcontractors of the Guarantor, the Seller or any predecessor in
title, in connection with the use, handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Material that
at any time is or has been located or present on or under or that at any time
migrates, flows, percolates, diffuses or in any way moves from, onto or under
the Property,
(c) Hazardous Material released from the Property to the environment or
Environmental Conditions on the Property (including clean-up costs, response
costs, remediation and removal costs, costs of corrective action, costs of
financial assurance, fines and penalties and natural resource damages), causing
death or injury to any Person, or to wildlife, aquatic species,
14
vegetation, flora and fauna, and any resulting mitigative action required by or
under Environmental Laws,
(d) any claim concerning lack of compliance with Environmental Laws, or
any act or omission on the Property causing an Environmental Condition that
requires remediation, investigation, corrective action, clean-up obligation or
other response or causes any Governmental Authority to record a Lien on the land
records, or
(e) any Contamination requiring remediation, investigation, corrective
action, clean-up obligation or other response under any Environmental Law on or
under the Land, or affecting any natural resources, arising in connection with
the generation, use, handling, storage, transport or disposal of any Hazardous
Materials on the Property, and irrespective of whether any of such activities
were or will be undertaken in accordance with Applicable Laws;
provided, however, that the Seller shall not be required to indemnify any
Indemnitee under this Section 10.2 for any Claim to the extent resulting
from the willful misconduct or negligence of such Indemnitee. It is
expressly understood and agreed that the indemnity provided for herein
shall survive the expiration or termination of and shall be separate and
independent from any remedy under any other Operative Document.
SECTION 10.3 Proceedings in Respect of Claims. With respect to any amount
that the Seller is requested by an Indemnitee to pay by reason of Section 10.1
or 10.2, such Indemnitee shall, if so requested by the Seller and prior to any
payment, submit such additional information to the Seller as the Seller may
reasonably request and which is in the possession of or reasonably available to
Indemnitee to substantiate properly or which is otherwise related to the
requested payment or related Claim. The Seller and each Indemnitee agree to give
each other prompt written notice of any Claim hereby indemnified against but the
giving of any such notice by an Indemnitee shall not be a condition to the
Seller's obligations under Section 10.1 or 10.2, except to the extent failure to
give such notice materially prejudices Seller's rights hereunder.
In case any action, suit or proceeding shall be brought against any
Indemnitee for which indemnification is or will at any time be sought hereunder
or under this Agreement or any other Operative Document, the Seller shall be
entitled, at the Seller's expense and subject to the limitations set forth in
this Section 10.3, to participate in, and, to the extent that the Seller desires
to, assume and control the defense thereof; provided, however, that Seller shall
not take any action that would unduly prejudice the interests of any Indemnitee.
The Seller, at the request of each Indemnitee, shall keep such Indemnitee
apprised of the status of such action, suit or proceeding and shall provide such
Indemnitee with all information with respect to such action, suit or proceeding
as such Indemnitee shall reasonably request, and provided, further, that the
Seller shall not be entitled to assume and control the defense of any such
action, suit or proceeding if and to the extent that (A) in the reasonable
opinion of such Indemnitee (x) such action, suit or proceeding involves any risk
of imposition of criminal liability or will involve a material or imminent risk
of the sale, forfeiture or loss of, the Property or any part thereof unless, in
the case of civil liability or such potential Lien, the Seller shall have posted
a bond or other security satisfactory to the relevant Indemnitees in respect to
such risk or (y) the control of such action, suit or proceeding would involve an
actual or potential conflict of interest, (B) such
15
proceeding involves Claims not fully indemnified by the Seller which the Seller
and the Indemnitee have been unable to sever from the indemnified claim(s), or
(C) an Event of Default under the Lease has occurred and is continuing. The
Indemnitee will join in the Seller's efforts to sever such action. The
Indemnitee may participate in a reasonable manner at the Seller's expense and
with its own counsel in any proceeding conducted by the Seller in accordance
with the foregoing.
Each Indemnitee shall at the expense of the Seller supply the Seller with
such information and documents reasonably requested by the Seller as are
necessary or advisable for the Seller to participate in, or assume and control
the defense of, any action, suit or proceeding to the extent permitted by
Section 10.1 or 10.2. Unless an Event of Default under the Lease shall have
occurred and be continuing, no Indemnitee shall enter into any settlement or
other compromise with respect to any Claim which is entitled to be indemnified
under Section 10.1 or 10.2 without the prior written consent of the Seller.
Upon payment in full of any Claim by the Seller pursuant to Section 10.1
or 10.2 to or on behalf of an Indemnitee and after an Indemnitee has been fully
indemnified for a Claim pursuant to Section 10.1 or 10.2, the Seller, without
any further action, shall be subrogated to any and all claims that such
Indemnitee may have relating thereto (other than claims in respect of insurance
policies maintained by such Indemnitee at its own expense), and such Indemnitee
shall execute such instruments of assignment and conveyance, evidence of claims
and payment and such other documents, instruments and agreements as may be
necessary to preserve any such claims and otherwise cooperate with the Seller
and give such further assurances as are necessary or advisable to enable the
Seller vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 10.1 or 10.2 shall
be paid to such Indemnitee promptly upon receipt of a written demand therefor
from such Indemnitee, accompanied by a written statement describing in
reasonable detail the basis for such indemnity and the computation of the amount
so payable.
SECTION 10.4 Limitations on Liability. Notwithstanding anything to the
contrary in this Section 10:
(a) The sole and exclusive remedy of Purchaser and any other Indemnitee
against Seller and Guarantor solely in connection with any breach of any
representation or warranty contained in this Agreement shall be to seek
indemnification as provided in Section 10.1(e); and
(b) in no event shall Seller or Guarantor have any liability for special,
punitive, speculative, indirect or consequential damages or for lost profit.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in this
Agreement and the other Operative Documents, and the parties' obligations under
any and all thereof, shall survive the execution and delivery of this Agreement,
the transfer of any and all Property to the Purchaser, any disposition
16
of any interest of the Purchaser in the Property and the expiration or sooner
termination of the Operative Documents.
SECTION 11.2 No Broker, etc. Each of the parties hereto represents to the
others that it has not retained or employed any broker, finder or financial
adviser to act on its behalf in connection with this Agreement or the
transactions contemplated herein or in the other Operative Documents nor has it
authorized any broker, finder or financial adviser retained or employed by any
other Person so to act. Any party who is in breach of this representation shall
indemnify and hold the other parties harmless from and against any liability
arising out of such breach of this representation.
SECTION 11.3 Notices. Unless otherwise specifically provided herein, all
notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person shall be given in writing and delivered by hand delivery, by certified
mail (postage pre-paid, return receipt requested) or by a nationally recognized
courier service and any such notice shall become effective upon delivery (in the
case of hand delivery), three (3) Business Days after mailing (with respect to a
notice by certified mail) and upon delivery to the recipient (with respect to a
notice delivered by a courier service) and shall be directed to the address of
such Person identified below the signature of each party to this Agreement. From
time to time any party may designate a new address for purposes of notice
hereunder by written notice to each of the other parties hereto in accordance
with this Section.
SECTION 11.4 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 11.5 Entire Agreement; Amendments. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
SECTION 11.6 Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Agreement are for convenience of reference
only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
SECTION 11.7 Parties in Interest. Except as expressly provided herein,
none of the provisions of this Agreement is intended for the benefit of any
Person except the parties hereto.
SECTION 11.8 GOVERNING LAW. THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY
THE LAW OF THE STATE OF WEST VIRGINIA AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE EXCLUDING ANY CONFLICT-OF-LAW OR CHOICE-OF-LAW RULES
WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF ANY OTHER
JURISDICTION.
SECTION 11.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any
17
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.10 Further Assurances. The parties hereto shall promptly cause
to be taken, executed, acknowledged or delivered, at the sole expense of the
Seller, all such further acts, conveyances, documents and assurances as the
other parties may from time to time reasonably request in order to carry out and
preserve the security interests and liens (and the priority thereof) intended to
be created pursuant to this Agreement, the other Operative Documents, and the
transactions thereunder (including the preparation, execution and filing of any
and all filings or registrations which the parties hereto may from time to time
request to be filed or effected); provided, however, that the Seller shall not
be required to pay expenses pursuant to this Section to the extent solely
arising from a breach or alleged breach by Purchaser or any Investor of this
Agreement or any other Operative Document. The Seller, at its own expense and
without need of any prior request from any other party, shall take such action
as may be necessary (including any action specified in the preceding sentence),
or as so requested, in order to maintain and protect all security interests
provided for hereunder or under any other Operative Document.
SECTION 11.11 SUBMISSION TO JURISDICTION. TO THE FULLEST EXTENT PERMITTED
BY LAW, EACH OF THE PARTIES HERETO HEREBY SUBMITS ITSELF TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
WEST VIRGINIA AND THE CIRCUIT COURT OF XXXXXXX COUNTY, WEST VIRGINIA FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY. EACH OF SUCH PARTIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDINGS BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 11.12 WAIVER OF JURY TRIAL. THE PARTIES HERETO VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY OF THE
PARTIES HERETO. THE PARTIES HERETO HEREBY AGREE THAT THEY WILL NOT SEEK TO
CONSOLIDATE ANY SUCH LITIGATION WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL
HAS NOT OR CANNOT BE WAIVED. THE PROVISIONS OF THIS SECTION 11.12 HAVE BEEN
FULLY NEGOTIATED BY THE PARTIES HERETO AND SHALL BE SUBJECT TO NO EXCEPTIONS.
EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER
OPERATIVE DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH OF THE OTHER PARTIES ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER OPERATIVE DOCUMENT.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
FW HOLDINGS, INC, as Seller
By:
-----------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
Initial address for notices:
F.W. Holdings, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Mr. Xxxx Xxxxxx
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000
Attention: W. Xxxxx Xxxxxx, Esq.
S-1
[Agreement]
MABCO STEAM COMPANY, LLC,
as Purchaser
By: The Cleveland-Cliffs Iron
Company, its Manager
By:
-----------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
Initial address for notices:
Cleveland-Cliffs Inc.
Diamond Building
0000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xx. Xxxxxx X.
Xxxxxxxxx
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx,
Esq.
S-2
[Agreement]
WEIRTON STEEL CORPORATION,
as GUARANTOR
By:
-----------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
Initial address for notices:
Weirton Steel Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Mr. Xxx Xxxxx
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000
Attention: W. Xxxxx Xxxxxx, Esq.
S-3
[Agreement]
SCHEDULE 5.1(g)
CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS OF
GUARANTOR AND SELLER
GUARANTOR:
Weirton Steel Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
SELLER:
FW Holdings
Weirton Steel Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
SCHEDULE 5.1(j)
INFORMATION ABOUT THE PROPERTY FURNISHED BY GUARANTOR
1. Memorandum from Xxx Xxxxxx to Xxxxxx XxXxxxxxxx dated August 21, 2001.
2. Letter from Xxxxxx XxXxxxxxxx to Xxxx Xxxxxxx dated September 17, 2001.
SCHEDULE 6.1(p)
AGREEMENTS RELATING TO THE PROPERTY
Agreements between the Guarantor and the Independent Steelworkers Union
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
All that certain parcel of land situate in the District of Xxxxxx, County of
Xxxxxxx, City of Weirton, State of West Virginia, being more particularly
described as follows:
Beginning at the western most corner of Lot 316 of the Xxxxxxxx Sheet & Tin
Plate Company first addition Plat Book 1, page 77, said point also being the
intersection of the east right-of-way line of Main Street (Second Street) with
the south line of Avenue "C" and the true place of beginning of the property
here to be conveyed; thence leaving said point and with the south right-of-way
line of Avenue "C" and the north line of Lots 316 through 302, north 36 degrees
- 43 minutes east a distance of 474.89 feet to the north east corner of Lot 302
said point being on the west right-of-way line of County Road (WV Route 2)
thence with said west right-of-way line south 40 degrees, 04 minutes east a
distance of 282.48 feet to a point being the southeast corner of Lot 317 and the
intersection of the west right-of-way line of County Road with the north
right-of-way line of Avenue "D"; thence with the north right-of-way of Avenue
"D" south 36 degrees, 43 minutes west a distance of 410.30 feet to a point on
the east right-of-way line of the aforementioned Main Street said point also
being the intersection of the north right-of-way line of Avenue "D" with the
east right-of-way line of Main Street; thence with the east right-of-way line of
Main Street and the west line of Xxx 000, Xxxxx "X", xxx Xxx 000, xxxxx 00
degrees - 17 minutes west a distance of 275 feet to the place of beginning.
Containing 2.794 acres more or less.
Being a fractional part of lands of Weirton Steel Corporation Parcel III as
recorded in the records of Xxxxxxx County Deed Book 193, page 116 also being
Lots 302 through 330 and Alley "H" of the Xxxxxxxx Sheet and Tin Plate Company
First Addition Plat Book 1 page 77, said Alley H was conveyed by the City of
Weirton to Weirton Steel Corporation, a Delaware corporation, by quitclaim deed
dated January 15, 2001 and recorded in Deed Book 252 at page 220.
EXHIBIT B
ENERGY ASSETS
SEE ATTACHED
EXHIBIT C
SUPPLY AGREEMENT
SEE ATTACHED
EXHIBIT D
LIENS
1. Real estate taxes for 2002, and subsequent years (not yet due and
payable).
2. Master Declaration of Easements, Covenants and Restrictions for Weirton,
West Virginia Plant Site made by Weirton Steel Corporation dated October
25, 2001 and recorded in Lease Book 36, Page 633 Xxxxxxx County Clerk's
Office; as amended by that certain First Amendment to Master Declaration
of Easements, Covenants and Restrictions for Weirton, West Virginia Plant
Site made by Weirton Steel Corporation dated October 26, 2001, and
recorded in Lease Book ____, Page ____, Xxxxxxx County Clerk's Office.
3. Distribution Line Easement dated November 17, 1969, and recorded in Lease
Book 14, Page 92, Xxxxxxx County Clerk's Office.
4. Transmission Line Easement dated January 23, 1974, and recorded in Lease
Book 15, Page 499, Xxxxxxx County Clerk's Office.
5. Transmission Line Easement dated May 9, 1979, and recorded in Lease Book
17, Page 708, Xxxxxxx County Clerk's Office.
6. Right of Way Agreement dated February 2, 1996, and recorded in Lease Book
30, Page 443, Xxxxxxx County Clerk's Office, as shown on survey prepared
by Xxxxxxx & Xxxxxxxxxx, Inc., Xxxx X. Xxxxxxxxxx, West Virginia
Registered Surveyor No. 57, dated October 25, 2000 and revised October 24,
2001 ("Survey").
7. All coal, oil, gas, or other minerals underlying the subject property.
8. Right of way and easement over a strip containing 780 square feet, more or
less, from Lot 302 of the insured property for State Road Purposes,
conveyed by Xxxxxxx Xxxxxxx, et us, to the State of West Virginia, by deed
dated December 21, 1940, and recorded in Deed Book 57, Page 290, Xxxxxxx
County Clerk's Office, and as shown on the Survey.
9. The following matters shown on the Survey and more specifically set forth
below:
A) Twenty-foot set-back building line as shown on Plat and Survey;
B) Fence encroachment on Alley D;
C) Subject to concrete sidewalks as shown on survey; and
D) Subject to underground oxygen line.
EXHIBIT E
XXXX OF SALE
SEE ATTACHED
EXHIBIT F
DEED
SEE ATTACHED
EXHIBIT G
EASEMENT AGREEMENT
SEE ATTACHED
EXHIBIT H
PURCHASE MONEY NOTE
SEE ATTACHED
EXHIBIT I
NON-DISTURBANCE AGREEMENT
SEE ATTACHED
APPENDIX A TO THE PURCHASE AGREEMENT AND LEASE
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and assigns
but, if applicable, only if such successors and assigns are permitted by the
Operative Documents, and reference to a Person in a particular capacity excludes
such Person in any other capacity or individually;
(iii)reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative Document),
document or instrument means such agreement, document or instrument as amended
or modified and in effect from time to time in accordance with the terms thereof
and, if applicable, the terms of the other Operative Documents and reference to
any promissory note includes any promissory note which is an extension or
renewal thereof or a substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as amended,
modified, codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated thereunder and
reference to any section or other provision of any Applicable Law means that
provision of such Applicable Law from time to time in effect and constituting
the substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or Appendix,
Schedule or Exhibit thereto;
(vii)hereunder, hereof, hereto and words of similar import shall be deemed
references to an Operative Document as a whole and not to any particular
Article, Section or other provision thereof; and
(viii) including (and with correlative meaning "include") means including
without limiting the generality of any description preceding such term.
B. Computation of Time Periods. For purposes of computation of periods of
time under the Operative Documents, the word "from" means "from and including"
and the words "to" and "until" each mean "to but excluding". Time is of the
essence with respect to all obligations of the parties under the Operative
Documents.
C. Accounting Terms and Determinations. Unless otherwise specified in any
Operative Document, all terms of an accounting character used therein shall be
interpreted, all accounting determinations thereunder shall be made, and all
financial statements required to be delivered thereunder shall be prepared, in
accordance with GAAP.
D. Conflict in Operative Documents. If there is any conflict between any
of the Operative Documents, such Operative Documents shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Purchase Agreement shall
prevail and control.
E. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
F. Defined Terms. Unless a clear contrary intention appears, terms defined
herein have the respective indicated meanings when used in each Operative
Document.
"Accrued Rent" means the Basic Rent that otherwise would be payable but
for the provisions of Section 4.1(a) of the Lease.
"Additional Insured" is defined in Section 11.2(a) of the Lease.
"Affiliate" means, as to any Person, any other Person directly or
indirectly through one or more intermediaries Controlling, Controlled by, or
under direct or indirect common Control with such Person. A Person shall be
deemed to Control another Person if the Controlling Person owns twenty-five
percent (25%) or more of any class of voting securities, partnership interests
or other equity interests of the Controlled Person or possesses, indirectly or
directly, the power to direct or cause the direction of the management or
policies of the Controlled Person, whether through the ownership of voting
securities, by contract or otherwise.
"After Tax Basis" means, with respect to any payment to be received, the
amount of such payment increased so that, after deduction of the amount of all
taxes required to be paid by the recipient (less any tax savings realized and
the present value of any tax savings projected to be realized by the recipient
as a result of such payment) with respect to the receipt by the recipient of
such amounts, such increased payment (as so reduced) is equal to the payment
otherwise required to be made.
"Allegheny Power" means Monongahela Power Company, d/b/a Allegheny Power ,
a regulated utility company, under the Power Supply Agreement.
"Amortization" means that component of each Basic Rent Amortization
Payment not applicable to the Investor Rate, but instead noted as "Principal
Payment" on the Schedule 4.1 attached to the Lease.
"Annual Basic Rent Payment Date" means March 31, 2003, and March 31 of
each subsequent year throughout the Base Term.
2
"Applicable Law" means all existing and future laws, rules, regulations
(including Environmental Laws) statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by, any Governmental
Authority, and applicable judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including wetlands) and those
pertaining to the construction, use or occupancy of the Property) or in each
case affecting the Property or the Lessee or any Affiliate of Lessee.
"Appraisal" is defined in Section 2.1(d) of the Purchase Agreement.
"Appraised Xxxxxx Xxxxxxx Plant" means the Land and the other real and
personal property and assets more particularly described in the Appraisal and
classified therein as the Xxxxxx Xxxxxxx Steam Generation Facility solely for
purposes of the Appraisal.
"Appraised Generation Assets" means all assets in the Appraisal that are
not classified therein as part of the Xxxxxx Xxxxxxx Steam Generation Facility
for purposes of the Appraisal.
"Appurtenant Rights" means, with respect to the Land and the Improvements
thereon, (i) the land underlying and the air space overlying the Land, (ii) any
public (to the extent of Purchaser's rights therein) or private ways or streets
crossing or abutting the Land or the Improvements thereon, (iii) all agreements,
easements, rights of way or use, rights of ingress or egress, privileges,
appurtenances, tenements, hereditaments and other rights and benefits at any
time belonging or pertaining to the Land or the Improvements thereon, including
the use of any streets, ways, alleys, vaults or strips of land adjoining,
abutting, adjacent or contiguous to the Land or the Improvements thereon and
(iv) all permits, licenses and rights, whether or not of record, appurtenant to
the Land or the Improvements thereon.
"Assignment and Release of Supply Agreement" means the Assignment and
Release of Supply Agreement between Lessee and Lessor dated as of the Closing
Date.
"at the expense of Lessee" means that Lessee will be responsible for the
actual reasonable out-of-pocket costs incurred by the Person in question.
"at the expense of Seller" means that Seller will be responsible for the
actual reasonable out-of-pocket costs incurred by the Person in question.
"Base Term" means the period commencing immediately after the expiration
of the Interim Term and expiring on the Expiration Date.
"Basic Rent" means, as of any Basic Rent Payment Date, the sum of (i) the
Basic Rent Amortization Payment, plus (ii) the Energy Co-Payment, if any, plus
(iii) the Prepayment, if any.
"Basic Rent Amortization Payment" means an amount calculated on a straight
line amortization basis derived by taking the Lease Balance, amortized over the
then remaining years of the Base Term at an interest rate equal to the Investor
Rate, with level annual payments made on a quarterly basis. An example of the
Basic Rent Amortization Payments (assuming a 10 year
3
Base Term, level quarterly payments and no adjustments based on Prepayments or
Energy Co-Payments) is attached to the Lease as Schedule 4.1.
"Basic Rent Commencement Date" means the date January 1, 2003.
"Basic Rent Payment Date" means each March 31, June 30, September 30 and
December 31 of the Lease Term occurring after the Basic Rent Commencement Date.
"Xxxx of Sale" means the Xxxx of Sale, dated as of the Closing Date and
executed by Lessee, by which the Energy Assets are conveyed to Lessor, in the
form attached as Exhibit E to the Purchase Agreement.
"Bondholders" means the holders of the bonds issued pursuant to that
certain Indenture and issuance of Senior Secured Discount Notes due 2008 in
exchange for 11 3/8% Senior Notes due 2004 and 10 3/4% Senior Notes due 2005,
acting through the trustee under said Indenture.
"Business Day" means a day other than a Saturday or a Sunday on which
commercial banks in Weirton, West Virginia are open for business.
"Capital Lease" means any lease of property by the Lessee or a Subsidiary
of the Lessee, as lessee, which would be capitalized in accordance with GAAP.
"Capital Lease Obligations" means the amount of obligations of the Lessee
and its Subsidiaries under Capital Leases which would be shown as a liability of
the Lessee or such Subsidiary in accordance with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Sections 9601 et. seq ., as amended by the
Superfund Amendments and Reauthorization Act of 1986, as otherwise amended or
modified from time to time, or any successor statute thereto.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including reasonable legal fees and expenses) of any nature
whatsoever.
"Closing Date" means the date October 26, 2001.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
"Collateral" is defined in Section 19 of the Lease.
"Constituent Document" means, relative to any Person, its certificate of
incorporation or articles of formation, its by-laws and all shareholder
agreements, voting trusts, operating agreements and similar arrangements
applicable to any of its authorized shares of capital stock or equity interests.
4
"Contamination" means the presence of Hazardous Materials at or under any
real property of the Lessee or any Subsidiary, whether owned or leased, which
requires clean-up, remediation, monitoring or other action under any applicable
Environmental Law.
"Control" (and its derivatives such as Controlled and Controlling) means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, partnership interests or other equity interests,
by contract or otherwise, including the power to elect a majority of the
directors of a corporation or trustees of a trust, as the case may be.
"Deed" means the Special Warranty Deed, dated as of the Closing Date and
executed by Lessee, by which the Facility is conveyed to the Lessor, in the form
attached as Exhibit F to the Purchase Agreement.
"Demand Date" is defined in Section 16.1(a) of the Lease.
"Dollars" and "$" mean dollars in lawful currency of the United States of
America.
"Easement Agreement" means the Master Declaration of Easements, Covenants
and Restrictions for Weirton, West Virginia Plant Site by Guarantor dated
October 25, 2001, recorded in the Xxxxxxx County Clerk's Office in Lease Book 36
at page 633, as amended by that certain Master Declaration of Easements,
Covenants and Restrictions for Weirton, West Virginia Plant Site by Guarantor
dated October 26, 2001, to be recorded in the Xxxxxxx County Clerk's Office.
"Energy Assets" means all (a) all Equipment listed on Exhibit B of the
Purchase Agreement, and (b) all other Equipment located on the Land as of the
Closing Date, specifically excluding the MBC Assets.
"Energy Co-Payment" is defined in Section 17 of the Lease.
"Environmental Audit" means an environmental site assessment regarding the
Property (at least a standard "Phase I" evaluation) dated no earlier than six
(6) months prior to the Closing Date in form and substance reasonably
satisfactory to the Purchaser.
"Environmental Claim" means any claim, suit, notice, order, demand or
other communication made by any Person with respect to the Lessee, the Seller,
the Guarantor or any Subsidiary or any of their respective properties, whether
owned or leased, that: (i) asserts a violation of an Environmental Law; (ii)
asserts a liability under an Environmental Law; (iii) orders investigation,
corrective action, remediation or other response under an Environmental Law;
(iv) demands information under an Environmental Law; (v) alleges personal injury
or property damage resulting from Hazardous Materials; or (vi) alleges that
there is or may be Contamination.
"Environmental Condition" means, with respect to the Property, any
activity, occurrence or condition that violates or results in non-compliance
with or liability under any Environmental Law.
5
"Environmental Law" means any Governmental Rule, permit, license, writ,
injunction, decree, award or standard concerning health, safety and protection
of, or regulation of the discharge of substances into, the environment, or which
regulates the use, generation, management, control, treatment, storage or
disposal of any substance, materials, or wastes, including without limitation,
Hazardous Materials, whether now in existence or hereafter enacted, agreed to,
issued or otherwise becoming effective.
"Equipment" means all equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever now or subsequently
attached to, contained in or used or usable in any way in connection with any
operation or letting of the Facility or the Energy Assets, including heating,
electrical, switch gear, uninterrupted power supply, and mechanical equipment,
lighting, switchboards, plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, generators, loading and
unloading equipment and systems, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors, engines,
machinery, pipes, pumps, tanks, conduits, appliances, fittings and fixtures of
every kind and description.
"Event of Default" is defined in Section 15 of the Lease.
"Event of Loss" means any loss of, destruction or damage to, or taking of
the Facility or Energy Assets (or any part thereof) other than an Event of Total
Loss.
"Event Notice" is defined in Section 13.1 of the Lease.
"Event of Total Loss" means (i) all or substantially all of the Facility
shall be damaged to the extent of being completely or substantially completely
destroyed, (ii) all or substantially all of the Facility shall be taken by
exercise of a power of eminent domain or similar right or power, or (iii) a
Governmental Authority shall order that the Facility shall cease to operate
permanently.
"Expiration Date" means, unless the Lease shall have been earlier
terminated in accordance with the provisions of the Lease or any of the other
Operative Documents, December 31, 2012.
"Facility" means the Land related to the Xxxxxx Xxxxxxx Steam Generation
Facility, as more fully described in Exhibit A of the Purchase Agreement, and
all buildings, structures and other improvements of any and every nature located
on the Land and all fixtures attached or affixed, actually or constructively, to
the Land or to any such buildings, structures or other improvements.
"Fleet" means Fleet Capital Corporation and its successor and assigns, as
agent under the Senior Credit Facility to be entered into by Guarantor and
various lenders.
"GAAP" means generally accepted accounting principles which are consistent
with the principles promulgated or adopted by the Financial Accounting Standards
Board, its predecessors and its successors, including any official
interpretations thereof.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees,
6
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law, and shall include all environmental and operating permits and licenses that
are required for the use, occupancy, and operation of the Property.
"Governmental Approval" Any order, consent, authorization, license,
validation, approval or permit, issued to or required to be obtained by the
Lessee, the Seller, the Guarantor or any of their Subsidiaries, as applicable,
in connection with the ownership, construction, erection, installation,
operation and maintenance of their respective properties, and the conduct of
their respective present businesses.
"Governmental Authority" means the government of the United States or the
government of any state or locality therein, any political subdivision or any
governmental, quasi-governmental, judicial, public or statutory instrumentality,
court, arbitrator, authority, body or entity or other regulatory bureau,
authority, body or entity of the United States or any state or locality therein.
"Governmental Rule" means any law, statute, rule, regulation, treaty,
ordinance, order, writ, injunction, decree, judgment, guideline, directive or
decision of any Governmental Authority, including Environmental Laws, all
whether in existence on the Closing Date or whether issued, enacted or adopted
after the Closing Date, and any change therein or in the interpretation or
application thereof following the Closing Date.
"Guaranteed Obligations" means, as to any Person, any obligation, direct
or indirect, by which such Person undertakes to guaranty, assume or remain
liable for the payment or performance of a second Person's obligations,
including (i) endorsements of negotiable instruments, (ii) discounts with
recourse, (iii) agreements to pay or perform upon a second Person's failure to
pay or perform, (iv) agreements to remain liable on obligations assumed by a
second Person, (v) agreements to maintain the capital, working capital, solvency
or general financial condition of a second Person, and (vi) agreements for the
purchase or other acquisition of products, materials, supplies or services, if
in any case payment therefor is to be made regardless of the nondelivery of such
products, materials or supplies or the nonfurnishing of such services.
"Guarantor" means Weirton Steel Corporation, a Delaware
corporation.
"Guaranty Agreement" means the Guaranty Agreement, dated as of the Closing
Date, executed by the Guarantor in favor of Lessor.
"Hazardous Materials" means any hazardous or toxic materials, substances,
chemicals, wastes or pollutants that from time to time are defined as such by or
pursuant to or are regulated under any Environmental Laws, including friable
asbestos, polychlorinated biphenyls, petroleum, petroleum derivatives or
by-products, other hydrocarbons, urea formaldehyde and any material, substance,
pollutant or waste that is defined as a hazardous waste under RCRA or defined as
a hazardous substance under CERCLA.
"Impositions" means any and all liabilities, losses, expenses and costs of
any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings of any
7
nature whatsoever imposed by a Governmental Authority ("Taxes") or otherwise
(including, (i) real and personal property taxes, including personal property
taxes on any property covered by the Lease that is classified by Governmental
Authorities as personal property, and real estate or ad valorem taxes in the
nature of property taxes; (ii) sales taxes, use taxes and other similar taxes
(including rent taxes and intangibles taxes); (iii) any excise taxes; (iv) real
estate transfer taxes, conveyance taxes, mortgage taxes, intangible taxes, stamp
taxes and documentary recording taxes and fees; (v) taxes that are, or are in
the nature of, franchise, capital stock, income, value added, gross receipts,
privilege and doing business taxes, license and registration fees; and (vi)
assessments on the Property, including all assessments for public improvements
or benefits, whether or not such improvements are commenced or completed within
the Lease Term, and whether or not such improvements are on or off site with
respect to such Property), and in each case all interest, additions to tax and
penalties thereon, which at any time may be levied, assessed or imposed by any
Governmental Authority upon or with respect to (a) any Tax Indemnitee in
connection with the Property or any part thereof or interest therein, or the
Lessee or any sublessee or user of the Property; (b) the financing, refinancing,
demolition, construction, subdivision, substitution, subleasing, assignment,
control, condition, occupancy, servicing, maintenance, repair, ownership,
possession, purchase, rental, lease, activity conducted on, delivery, insuring,
use, operation, improvement, transfer, return or other disposition of the
Property or any part thereof or interest therein; (c) the rentals, receipts or
earnings arising from the Property or any part thereof or interest therein; (d)
the Operative Documents or any payment made or accrued pursuant thereto; (e) the
income or other proceeds received with respect to the Property or any part
thereof or interest therein upon the sale or disposition thereof; or (f)
otherwise in connection with the transactions contemplated by the Operative
Documents. Impositions for any given tax year shall exclude assessment
installments that are not due and payable during such tax year.
Notwithstanding anything in the first paragraph of this definition (except
as provided in the final paragraph of this definition) the term "Impositions"
shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are in the
nature of, sales, use, rental, transfer, documentary or property taxes) that
are imposed by any Governmental Authority and that are based upon or measured
by or with respect to gross or net income or gross or net receipts (including
Taxes based on net income or net receipts derived solely from the transactions
contemplated by the Operative Documents) or which are in substitution for, or
relieve such Tax Indemnitee from any actual Tax based upon or measured by such
Tax Indemnitee's gross or net income or receipts (including any minimum taxes,
income or capital gains taxes, alternative minimum taxes, capital stock or
franchise taxes, withholding taxes or taxes on, measured by or with respect to
or in the nature of excess profits, items of tax preference, gift, succession,
estate, or any similar taxes or taxes in lieu thereof) and any interest,
additions to tax, penalties or other charges in respect thereof and any
withholding tax imposed as a collection device for, in lieu of, or otherwise
related to the foregoing without regard to whether such tax is required to be
collected by Lessee and without regard to whether Lessee would be liable for
such withholding tax in the event it failed to so withhold; provided that this
clause (i) shall not be interpreted to prevent a payment from being made on an
After Tax Basis if such payment is otherwise required to be so made;
8
(ii) any Tax or imposition to the extent, but only to such extent, it
relates to any act, event or omission that occurs, or relates to a period,
after the termination of the Lease (but not any Tax or imposition that relates
to any period prior to the termination of the Lease with respect to the
Property to which such Imposition relates);
(iii)any Tax or imposition for so long as, but only for so long as,
it is being contested in accordance with the provisions of Section 14.4(b) of
the Lease, provided that the foregoing shall not limit any Lessee's obligation
under Section 14.4(b) of the Lease to advance to such Tax Indemnitee amounts
with respect to Taxes that are being contested in accordance with Section
14.4(b) of the Lease or any expenses incurred by such Tax Indemnitee in
connection with such contest;
(iv) any interest, additions to tax or penalties imposed on a Tax
Indemnitee as a result of a breach by such Tax Indemnitee of its obligations
under Section 14.4(d) of the Lease as a result of a Tax Indemnitee's failure to
file any return or other documents timely and as prescribed by applicable law;
provided that this clause (iv) shall not apply (x) if such interest or
penalties arise as a result of a position taken (or requested to be taken) by
the Lessee in a contest controlled by the Lessee under Section 14.4(b) of the
Lease or (y) if such failure is attributable to a failure by the Lessee to
fulfill its obligations under the Lease with respect to any such return;
(v) any Taxes or impositions imposed upon a Tax Indemnitee with
respect to any voluntary transfer, sale, financing or other voluntary
disposition of any interest in the Property or any part thereof, or any
interest therein or any interest or obligation under the Operative Documents,
or from any sale, assignment, transfer or other disposition of any interest in
a Tax Indemnitee or any Affiliate thereof, (other than any transfer pursuant to
the terms of the Lease (by way of example but not limitation) (1) the exercise
by the Lessee of the Termination Option or any termination option or other
purchase of the Property by the Lessee, (2) the occurrence of an Event of
Default, (3) an Event of Loss or an Event of Total Loss affecting the Property,
or (4) any sublease, modification or addition to the Property by the Lessee);
(vi) any Taxes or impositions imposed on a Tax Indemnitee, to the
extent such Tax Indemnitee actually receives a credit (or otherwise has a
reduction in a liability for Taxes) in respect thereof against Taxes that are
not indemnified under the Lease (but only to the extent such credit is not
taken into account in calculating the indemnity payment on an After Tax Basis);
(vii)Taxes imposed on or with respect to or payable by any Tax
Indemnitee based on, measured by or imposed with respect to any fees or rents
received by such Tax Indemnitee (unless such Tax is otherwise in substitution
of a tax included in definitions of Impositions);
(viii) any Taxes imposed against or payable by a Tax Indemnitee
resulting from, or that would not have been imposed but for, the gross
negligence or willful misconduct of such Tax Indemnitee;
9
(ix) Taxes to the extent resulting from such Tax Indemnitee's failure
to comply with the provisions of Section 14.4(b) of the Lease, which failure
precludes or materially adversely affects the ability to conduct a contest
pursuant to Section 14.4(b) of the Lease (unless such failure is directly
caused by the Lessee's breach of its obligations);
(x) Taxes imposed on or with respect to or payable as a result of
activities of a Tax Indemnitee or Affiliate thereof unrelated to the
transactions contemplated by the Operative Documents or not specifically
authorized by Lessee or the Operative Documents;
(xi) Taxes imposed on or with respect to or payable by a Tax
Indemnitee resulting from, or that would not have been imposed but for the
existence of, any Lessor Lien;
(xii)Taxes imposed on or with respect to or payable by a Tax
Indemnitee because such Tax Indemnitee or any Affiliate thereof is not a United
States person within the meaning of Section 7701(a)(30) of the Code and the
applicable Regulations thereunder;
(xiii) Any Tax imposed by its express terms in lieu of or in
substitution for a Tax not subject to indemnity pursuant to the provisions of
Section 14.4 of the Lease; and
(xiv)Any Tax imposed against or payable by a Tax Indemnitee pursuant
to Section 3406 of the Code.
"Improvements" is defined in Section 8 of the Lease.
"Indebtedness" means, as to any Person, individually and collectively, (i)
obligations and indebtedness for borrowed money, including the Obligations; (ii)
obligations evidenced by bonds, debentures, notes or similar instruments; (iii)
obligations under conditional sale or other title retention agreements relating
to property purchased; (iv) obligations issued or assumed as the deferred
purchase price of property or services; (v) Capital Lease Obligations; (vi)
obligations with respect to letters of credit, whether matured or contingent;
(vii) obligations with respect to any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, interest rate insurance or
any other agreement or arrangement designed to provide protection against
fluctuations in interest rates; (viii) obligations of others secured by any Lien
on property or assets owned or acquired by the affected Person, whether or not
the obligations secured thereby have been assumed; (ix) Guaranteed Obligations;
and (x) all extensions, renewals, amendments, substitutions and replacements to
and of any of the foregoing; provided, however, that Indebtedness shall not
include accounts payable incurred in the ordinary course of business or
accruals, made in accordance with GAAP, for liabilities or expenses incurred in
the ordinary course of business, if those accounts payable or accrued
liabilities do not constitute or represent obligations to repay borrowed money.
"Indemnitee" means Lessor and each Investor and their respective
Affiliates, members, successors, assigns, directors, members, shareholders,
partners, officers, employees and agents.
"Index" is defined in Section 17 of the Lease.
"Interim Term" means the period commencing on the Closing Date and
expiring at midnight on December 31, 2002.
10
"Investment Company Act" means the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
"Investors" means those entities that are equity owners of the Lessor, as
more fully described in Lessor's Operating Agreement.
"Investor Rate" means (i) during the Interim Term, 12%, (ii) from January
1, 2003 through and including December 31, 2007, 12% and (iii) from January 1,
2008 through and including December 31, 2012, 16%.
"Labor Supply Agreement" means the Labor Supply Agreement between
Guarantor and Lessee dated as of the Closing Date.
"Land" means the parcel of real property more particularly described on
Exhibit A of the Purchase Agreement, and includes all Appurtenant Rights
attached thereto.
"Lease" means the Lease Agreement dated as of the Closing Date between the
Lessor and the Lessee, which when executed and delivered will constitute the
granting of a security interest in the Property.
"Lease Balance" means, as of any date of determination, an amount equal to
$30,000,000.00, plus all Accrued Rent, less Amortization, all Energy Co-Payments
and Prepayments paid by Lessee through the date of determination.
"Lease Term" means the Interim Term and the Base Term.
"Lessee" means FW Holdings, Inc., a Delaware corporation,
and its successors and assigns expressly permitted under the
Lease and the other Operative Documents.
"Lessor" means MABCO Steam Company, LLC, a Delaware limited liability
company, together with its successors and permitted assigns.
"Lessor Lien" means any Lien or disposition of title with respect to the
Property arising as a result of (a) any Claim against any Participant not
resulting from the transactions contemplated by the Operative Documents, (b) any
act or omission of any Participant which is not required or permitted by the
Operative Documents or is in violation of any of the terms of the Operative
Documents or (c) any Claim against any Participant, with respect to Taxes
against which the Lessee is not required to indemnify such Participant pursuant
to the Operative Documents.
"Lessor's Operating Agreement" means the Operating Agreement of Lessor
dated as of the Closing Date among Lessor and all Investors.
"Lien" means any mortgage, deed of trust, pledge, security interest,
security arrangement of any nature whatsoever, encumbrance, lien, easement,
servitude or charge of any kind, including any irrevocable license (in favor of
a Person other than the Lessee or its Affiliates), conditional sale or other
title retention agreement, any lease in the nature thereof (including a
synthetic lease, but excluding the Lease), and any assignment, deposit
arrangement or lease
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intended as, or having the effect of, security or any other right of or
arrangement with any creditor to have its claim satisfied out of any specified
property or asset with the proceeds therefrom prior to the satisfaction of the
claims of the general creditors of the owner thereof, whether or not filed or
recorded, or the filing of, or agreement to execute as "debtor", any financing
or continuation statement under the Uniform Commercial Code of any jurisdiction
or any federal, state or local lien imposed pursuant to any Environmental Law.
"MBC Assets" means all of the Equipment leased pursuant to that certain
Demand Promissory Note dated February 21, 1997, between Weirton Steel
Corporation and MBC Leasing Corp., executed pursuant to and incorporating by
reference the terms and conditions of that certain Master Lease Agreement dated
as of September 1, 1993, between Weirton Steel Corporation and General Electric
Capital Corporation, together with all accessions, substitutions and
replacements thereof.
"Management Services Agreement" means the Management Services Agreement
between Guarantor and Lessee dated as of the Closing Date.
"Mandatory Prepayment" is defined in Section 17 of the Lease.
"Memorandum of Lease" means a Memorandum of Lease, A Credit Line Deed of
Trust, Security Agreement and Fixture Filing dated as of the Closing Date
between the Lessor and Lessee, in the form of Schedule 21.18 to the Lease, which
(i) when recorded in the appropriate public records will constitute a mortgage
Lien on the Lessee's interest in the Property and (ii) when executed and
delivered will constitute the granting of a security interest in the Property.
"Mortgage" is defined in Section 19 of the Lease.
"Non-Disturbance Agreement" means the Landlord's Non-Disturbance Agreement
dated October 26, 2001 among the Seller, the Purchaser, the Guarantor and Fleet
Capital Corporation.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured, direct or indirect, xxxxxx or
inchoate, sole, joint, several or joint and several, due or to become due,
heretofore or hereafter contracted or acquired) of the Lessee arising under or
in connection with the Operative Documents including (i) all obligations for
Basic Rent, whether incurred on the Closing Date or thereafter, (ii) all
obligations for Supplemental Rent and all other obligations and liabilities of
the Lessee, whether incurred on the Closing Date or thereafter, whether for
fees, costs, indemnification or otherwise, arising under any Operative Document,
(iii) following the occurrence and during the continuance of an Event of
Default, all advances made by the Lessor for the maintenance, protection,
preservation or enforcement of, or realization upon, the collateral in which the
Lessor has been granted a security interest pursuant to an Operative Document
(or any portion thereof) including advances for storage, transportation charges,
taxes, insurance, repairs and the like.
"Obsolete Component" is defined in Section 7.3 of the Lease.
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"Operative Documents" means the following:
(i) the Purchase Agreement;
(ii) the Lease;
(iii) the Memorandum of Lease;
(iv) the Guaranty Agreement;
(v) the Supply Agreement;
(vi) the Assignment and Release of Supply Agreement;
(vii) the Purchase Money Note; and
(viii) the Transfer Documents.
"Optional Prepayment" is defined in Section 17 of the Lease.
"Optional Termination Date" is defined in Section 12(a)(i) of the Lease.
"Overdue Rate" means, with respect to any amount due under the Operative
Documents, the applicable Investor Rate or other interest rate then in effect
plus two percent (2%) or the highest rate permitted by Applicable Law (if any),
whichever is less. In the event that the Overdue Rate collected by Lessor or any
Investor is in violation of any usury or similar law, then the Overdue Rate
shall be reduced to the extent necessary to cause the Overdue Rate to comply
with any usury or similar law.
"Participant" means the Lessor or any Investor.
"Permitted Liens" means:
(i) Liens for taxes, assessments, governmental charges or levies on
the affected Person's properties if such taxes, assessments, governmental
charges or levies (A) are not at the time due and payable or if they can
thereafter be paid without penalty or are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which such
Person has created adequate reserves or (B) are not pursuant to any
Environmental Law;
(ii) pledges or deposits to secure payment of workers' compensation
obligations, unemployment insurance, deposits or indemnities to secure public or
statutory obligations or for similar purposes;
(iii) Liens arising out of judgments or awards against it with respect
to which enforcement has been stayed and such Person at the time shall currently
be prosecuting an appeal or proceeding for review in good faith by appropriate
proceedings diligently conducted and with respect to which it has created
adequate reserves or has adequate insurance protection;
(iv) mechanics', carriers', workmen's, repairmen's and other similar
statutory liens incurred in the ordinary course of such Person's business, so
long as the obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings being diligently conducted
and with respect to which such Person has created adequate reserves or has
adequate insurance protection;
(v) security interests in favor of lessors of personal property, which
property is the subject of a true lease between the lessor and the affected
Person;
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(vi) Liens to secure purchase money security interests, as the that
term is defined in the Uniform Commercial Code, in property that secures the
indebtedness that was incurred to acquire the property;
(vii) good-faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amount
due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(viii) encumbrances consisting of zoning restrictions, easements, or
other restrictions on the use of real property, none of which materially impairs
the use of such property or the value thereof, and none of which is violated in
any respect by existing or proposed structures or land use; and
(ix) Liens set forth on Exhibit D to the Purchase Agreement.
"Permitted Property Liens" means, with respect to the Property, any of the
following:
(i) the respective rights and interests of the parties to the
Operative Documents as provided in the Operative Documents, including the
easements and other rights established by the Easement Agreement;
(ii) the rights of any sublessee or licensee under a sublease
permitted by the terms of the Lease;
(iii) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 14.4 of the Lease;
(iv) Liens arising by operation of law, materialmen's, mechanics',
workers', repairmen's, employees', carriers', warehousemen's and other like
Liens relating to the construction of any Improvements or arising in the
ordinary course of business for amounts that either (A) are not more than 60
days past due or (B) are being diligently contested in good faith by appropriate
proceedings and for the payment of which adequate reserves have been provided as
required by GAAP, so long as such proceedings satisfy the conditions for the
continuation of proceedings to contest Taxes set forth in Section 14.4 of the
Lease;
(v) Liens of any of the types referred to in clause (iv) above that
are more than 60 days past due or are not being diligently contested in good
faith by appropriate proceedings that in each case have been bonded for not less
than the full amount in dispute (or as to which other security arrangements
satisfactory to the Lessor have been made), which bonding (or arrangements)
shall comply with applicable Requirements of Law, and has effectively stayed any
execution or enforcement of such Liens;
(vi) Liens arising out of judgments or awards with respect to which
appeals or other proceedings for review are being prosecuted in good faith and
for the payment of which adequate reserves have been provided as required by
GAAP, so long as such proceedings have
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the effect of staying the execution of such judgments or awards and satisfy the
conditions for the continuation of proceedings to contest set forth in Section 6
of the Lease;
(vii) easements, rights of way and other encumbrances on title to
real property set forth on Exhibit D of the Purchase Agreement;
(viii) Lessor Liens; provided that the existence of such liens shall
not be deemed Lessee's authorization or recognition of such liens;
(ix) Liens created by the Lessee with the consent of the Lessor; and
(x) Liens or other encumbrances described in Schedule B on the title
insurance policy delivered by the Title Company with respect to the Property
pursuant to the Purchase Agreement, other than Liens described in clause (iv)
above that are not removed within 60 days of their origination.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, trust, unincorporated
organization, other business entity or Governmental Authority.
"Power Supply Agreement" means any agreements, if any, entered into
between Lessee and Allegheny Power after the Closing Date related to the sale of
electricity generated from the Energy Assets.
"Prepayment" means the Optional Prepayment and the Mandatory
Prepayment.
"Property" means the Facility and the Energy Assets.
"Prudent Utility Practice" means at a particular time, (a) any of the
practices, methods and acts engaged in or approved by a significant portion of
the electric generating industry at such time, or (b) any of the practices,
methods and acts which, in the exercise of reasonable judgment in light of the
facts known at the time the decision was made, could have been expected to
accomplish the desired result at the lowest reasonable cost consistent with good
business practices, reliability, safety and expedition; provided that "Prudent
Utility Practice" is not intended to be limited to the optimum or minimum
practice, method or act to the exclusion of all others, but rather to be a
spectrum of possible practices, methods or acts having due regard for, among
other things, manufacturers' warranties and the requirements of Governmental
Authorities and any applicable agreement.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations thereunder.
"Purchase Agreement" means the Purchase Agreement, dated as of the
Closing Date, among the Lessor, the Lessee and the Guarantor.
"Purchase Agreement Guaranty" is defined in Section 9.1 of the
Purchase Agreement.
"Purchase Agreement Obligations" is defined in Section 9.1 of the
Purchase Agreement.
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"Purchase Price" is defined in Section 3.2 of the Purchase Agreement.
"Purchase Money Note" is defined in Section 3.2 of the Purchase
Agreement, and to be in substantially in the form attached as Exhibit H to the
Purchase Agreement.
"Purchaser" means MABCO Steam Company, LLC, a Delaware limited
liability company, together with its successors and permitted assigns.
"Put Event" is defined in Section 13.1 of the Lease.
"RCRA" means the Resource Conservation and Recovery Act of 1976, as
amended by the Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. 6901 et
seq., or as otherwise amended or modified or any successor statute thereto.
"Regulatory Credits" is defined in Section 7.4 of the Lease.
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Material.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Required Improvements" is defined in Section 8 of the Lease.
"Requirement of Law" means, as to any Person, (a) the Constituent
Documents of such Person, and (b) all statutes, laws, rules, orders,
regulations, ordinances, judgments, decrees and injunctions of any Governmental
Authority affecting the Property, or the use or alteration thereof, whether now
or hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to the Property or in any way limit the use
and enjoyment thereof (including all building, zoning, subdivision and fire
codes and the Americans with Disabilities Act of 1990, 42 U.S.C. Sections 1201
et. seq. and any other similar Federal, state or local laws or ordinances and
the regulations promulgated thereunder) and any that may relate to environmental
requirements (including all Environmental Laws), and all permits, certificates
of occupancy, licenses, authorizations and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in any
instruments which are either of record or known to the Lessee or Guarantor
affecting the Property.
"Restructuring Indebtedness" means (i) the Senior Credit Facility to
be entered into by the Guarantor and Fleet Capital Corporation, as agent, as the
same may be amended, renewed or modified from time to time, (ii) the Indenture
and issuance of Senior Secured Discount Notes due 2008 in exchange for 11 3/8%
Senior Notes due 2004 and 10 3/4% Senior Notes due 2005, and (iii) the issuance
of Pollution Control Revenue Refunding Bonds (Weirton Steel Corporation Project)
Series 2001 due 2010 for the 8 5/8% Pollution Control Revenue Refunding Bonds
(Weirton Steel Corporation Project) Series 1989 due 2014.
"Secured Amount" is defined in Section 19 of the Lease.
"Secured Party" is defined in Section 19 of the Lease.
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"Seller" means FW Holdings, Inc., a Delaware corporation, and its
successors and assigns.
"Severable Improvements" means Improvements to the Property (i) that are
not required by Governmental Rule, (ii) that can be readily removed or detached
from the Property without damaging the Property, (iii) that are not required for
the proper operation of the Property, and (iv) the removal of which will not
delay or interfere with Lessor's ability to exercise its rights under the
Operative Documents.
"Steam Supply Agreement" means the Steam Supply Agreement between
Guarantor and Lessee dated as of the Closing Date.
"Subsidiary" means, with respect to any Person either (i) any corporation
more than 50% of the outstanding voting securities of which shall at the time be
owned or controlled, directly or indirectly, by the affected Person or one or
more Subsidiaries of such Person, or by the affected Person and one or more
Subsidiaries of such Person, or (ii) any other Person which is so owned or
controlled.
"Supplemental Rent" means any and all amounts, liabilities and obligations
(other than Basic Rent, Energy Co-Payments, or Prepayments) which the Lessee
assumes, agrees or is otherwise obligated to pay to the Lessor, any Investor or
any other Person under the Lease, or under any of the other Operative Documents
(whether or not designated as Supplemental Rent).
"Supply Agreement" means the Supply Agreement between Guarantor and Lessor
dated as of the Closing Date related to the provision of utilities, resources,
supplies and services related to the Facility, in the form attached as Exhibit C
to the Purchase Agreement.
"Tax Indemnitee" means Lessor and each Investor, their respective
Affiliates and their respective successors, assigns, directors, shareholders,
members, partners, officers, employees and agents.
"Taxes" is defined in the definition of Impositions.
"Termination Option" is defined in Section 12.1 of the Lease.
"Termination Value" means, as of any date of determination, an amount
equal to the sum of (i) the then outstanding Lease Balance and, without
duplication, (ii) all Supplemental Rent due and owing by Lessee under the
Operative Documents.
"Title Company" means Chicago Title Insurance Corporation.
"Transaction Expenses" means all costs and expenses in connection with:
(i) any and all Impositions incurred in recording, registering or
filing any Transfer Document, the Mortgage or any other transaction document,
any deed, declaration, mortgage, security agreement, notice or financing
statement with any public office, registry or governmental agency in connection
with the transactions contemplated by the Operative Documents;
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(ii) all costs and expenses for surveys and Environmental Audits for
the Property; and
(iii) all cost and expenses incurred in connection with the owners
title insurance policy issued by the Title Company in favor of the Purchaser
under the Purchaser Agreement, including all examination fees and other costs
associated with such title policy.
"Transfer Documents" means the Deed, Easement Agreement, Xxxx of Sale and
all other documents and instrument reasonably necessary to vest title to the
Property in the Lessor as contemplated by the Operative Documents.
"Trustee" is defined in Section 19 of the Lease.
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code as
in effect in any applicable jurisdiction.
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