Exhibit 4.15
FORM OF SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made as of the ____ day of
________, 2002, by WEIRTON STEEL CORPORATION, a Delaware corporation, having an
address at 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000 ("Debtor"), to
and for the benefit of X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, as trustee under the Notes Indenture (as
hereinafter defined) ("Notes Secured Party"), having an address at
________________________ and CITY OF WEIRTON, WEST VIRGINIA, a municipal
corporation duly organized and existing under the Constitution and laws of the
State of West Virginia ("Bond Issuer"), having an address at 000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000 (the Bond Issuer and any other holder of the
Bond Issuer's interest in this Agreement including, without limitation, the Bond
Trustee (as hereinafter defined), shall sometimes hereinafter be referred to as
the "Bond Secured Party"; the Notes Secured Party and the Bond Secured Party are
hereinafter sometimes collectively referred to as the "Secured Parties" and
individually referred to as a "Secured Party").
RECITALS:
A. In connection with the Debtor's issuance of its 10% Senior Secured
Notes Due 2008 in the original aggregate principal amount of $__________ (the
"Notes"), Debtor and Notes Secured Party executed that certain Indenture, dated
as of even date herewith (as amended from time to time, the "Notes Indenture").
B. The Bond Issuer has entered into an Indenture of Trust, dated as of
even date herewith (as amended from time to time, the "Bond Indenture"), with
X.X Xxxxxx Trust Company, National Association, as trustee (the "Bond Trustee")
for the purpose of issuing and securing the Bond Issuer's Secured Pollution
Control Revenue Refunding Bonds (Weirton Steel Corporation Project) Series 2002
in the original aggregate principal amount of $____________ (the "Bonds").
C. Contemporaneously with the execution of the Bond Indenture, the Bond
Issuer and Debtor have entered into that certain Agreement, dated as of even
date herewith (as amended from time to time, the "Bond Loan Agreement"), whereby
the Bond Issuer has agreed to make a loan to Debtor in the original principal
amount of $_____________ from the proceeds of the issuance or exchange of the
Bonds (the "Bond Loan").
D. Debtor is the owner of certain real and personal property more
particularly described in the Notes Indenture and Bond Loan Agreement as the
"Hot Mill Collateral", the "Tandem Mill Collateral" and the "Tin Mill
Collateral".
E. As security for the Obligations (as hereinafter defined), the Debtor
has executed and delivered certain deeds of trust (collectively, the "Deeds of
Trust") for the benefit of the Secured Parties encumbering the real property
constituting the "Hot Mill
Collateral", the "Tanden Mill Collateral" and the "Tin Mill Collateral" (as
such terms are defined in the Notes Indenture and Bond Loan Agreement).
F. Fleet Capital Corporation, a Rhode Island corporation ("First
Secured Party"), X.X. Xxxxxx Trust Company, National Association, in its
capacity as collateral agent ("Collateral Agent") under the Second Lien
Intercreditor Agreement (as hereinafter defined), the Notes Secured Party, and
the Bonds Secured Party have entered into that certain Intercreditor Agreement,
dated of even date herewith (as amended from time to time, the "First Lien
Intercreditor Agreement") that, among other things, governs the relative rights,
responsibilities and obligations between First Secured Party and Collateral
Agent, on behalf of each of the Secured Parties, with respect to, among other
things, the Collateral (as hereinafter defined).
G. The Notes Secured Party, Bond Secured Party and Collateral Agent
have entered into that certain Collateral Agency and Second Lien Intercreditor
Agreement, dated of even date herewith (as amended from time to time, the
"Second Lien Intercreditor Agreement"), that, among other things, governs the
relative rights, responsibilities and obligations between the Notes Secured
Party and Bond Secured Party with respect to, among other things, the
Collateral.
H. Notes Secured Party and Bond Secured Party require, as a condition
to their entering into the Bond Indenture and Bond Loan Agreement, respectively,
that Debtor grant a security interest to the Secured Parties of all of its
right, title and interest in and to the Collateral as additional security for
the Obligations.
NOW, THEREFORE, in consideration of the covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Debtor hereby agrees as follows:
ARTICLE 1
GRANTS OF SECURITY
Section 1.1 Collateral. Debtor does hereby irrevocably pledge and
assign to Secured Parties, and grant a security interest to Secured Parties in,
subject to the rights of the First Secured Party under the First Lien Documents
(as hereinafter defined in Section 11.15), the following property, rights,
interests and estates now owned or leased, or hereafter acquired by Debtor
(collectively, the "Collateral"):
(a) All equipment and fixtures (as such terms are defined in
the Uniform Commercial Code of West Virginia (the "UCC")) now owned or
existing or hereafter created, acquired or arising (whether or not
later moved) now or hereafter located on or within any portion of the
real property more particularly described on Exhibit X-0, Xxxxxxx X-0,
and Exhibit A-3 attached hereto (the "Land"), including without
limitation the assets described on Exhibit X-0, Xxxxxxx X-0, and
Exhibit B-3 attached hereto (but specifically excluding those assets
described on Exhibit C
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attached hereto), and all accessories, additions, attachments,
improvements, substitutions and replacements thereto and therefor,
together with all books, records, writings, data bases, information and
other similar property relating to, used or useful in connection with,
or evidencing, embodying, incorporating or referring to the Land or any
of the foregoing (collectively, "Equipment");
(b) All Pledged Accounts (as hereinafter defined) and other
accounts held by or for the benefit of each of the Secured Parties
pursuant to the terms of their respective Debt Instruments (as
hereinafter defined) and all other reserves, escrows or impounds
required under the Debt Instruments, together with all books, records,
writings, data bases, information and other similar property relating
to, used, or useful in connection with, or evidencing, embodying,
incorporating or referring to the Pledged Accounts;
(c) All proceeds (as such term is defined in the UCC),
products, rents, profits and returns of and from all or any part of the
property described in the preceding clauses (a) and (b); and
(d) Any and all after-acquired right, title and interest of
Debtor in and to any of the property described in clause (c) above.
Notwithstanding anything to the contrary contained herein, in no event
shall the Collateral include, nor shall Debtor be deemed to have granted to
Secured Parties a lien on or security interest in, any of the Project Assets or
any property arising from or as a result of the disposition of any of the
Project Assets. As used herein, "Project Assets" shall mean all of the pollution
control equipment (as equipment is defined in the UCC) and fixtures (as defined
in the UCC) located at Debtor's Weirton, West Virginia steel making facility,
the purchase and/or installation of which were financed or refinanced with the
proceeds of the City of Weirton, West Virginia's Pollution Control Revenue
Refunding Bonds (Weirton Steel Corporation Project) Series 1989 issued by the
City of Weirton, West Virginia.
Section 1.2 Security Agreement. This Agreement constitutes a "security
agreement" within the meaning of the UCC and other applicable law and with
respect to the Collateral. The Collateral includes personal property and all
other rights and interests, whether tangible or intangible in nature, of Debtor
in the Collateral. By executing and delivering this Agreement, Debtor hereby
grants to Secured Parties, as security for the Obligations, a security interest
in the Collateral to the full extent that the Collateral may be subject to the
UCC.
Section 1.3 Financing Statements. Debtor hereby authorizes the
recordation and filing by the Secured Parties, or either of them, of one or more
financing statements and any continuations thereof to perfect their security
interest in the Collateral.
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Section 1.4 Pledge of Monies Held. Debtor hereby pledges to the Secured
Parties, subject to the rights of the First Secured Party under the First Lien
Documents, any and all monies now or hereafter held by or for the benefit of the
Secured Parties as additional security for the Obligations until expended or
applied as provided in the Debt Instruments. Such monies pledged hereunder shall
include, without limitation, (i) any sums deposited with the "Agent" (as such
term is defined in the First Lien Intercreditor Agreement) and held in a
"Pledged Account" (as defined in the First Lien Intercreditor Agreement), (ii)
any sums deposited with the Secured Parties, or otherwise held by the Collateral
Agent for the benefit of the Secured Parties, and held in an account by or for
the benefit of the Secured Parties, and (iii) any insurance or condemnation
proceeds of the Collateral held by or for the benefit of the Secured Parties.
ARTICLE 2
OBLIGATIONS SECURED
Section 2.1 Obligations. This Agreement is given to secure the
following (collectively, the "Obligations"):
(a) the payment of amounts owing under the Notes (the "Notes
Debt") and the performance and observance of all covenants and
conditions contained in this Agreement, the Deeds of Trust, the Notes
Indenture and any other documents and instruments now or hereafter
executed by Debtor to evidence, secure or guarantee the payment of all
or any portion of the Notes Debt under the Notes Indenture, this
Agreement or the Deeds of Trust, and any and all renewals, extensions,
amendments and replacements of this Agreement, the Deeds of Trust, the
Notes Indenture and any such other documents and instruments (the
Notes, the Notes Indenture, this Agreement, the Deeds of Trust and any
other documents and instruments now or hereafter executed and delivered
in connection with the Notes, the Notes Indenture and any and all
amendments, renewals, extensions and replacements hereof and thereof,
being sometimes referred to collectively as the "Notes Instruments");
and
(b) the payment of amounts owing under the Bond Loan Agreement
and the performance and observance of all covenants and conditions
contained in this Agreement, the Deeds of Trust, the Bond Loan
Agreement and any other documents and instruments now or hereafter
executed by Debtor to evidence, secure or guarantee the payment of all
or any portion of the Bond Loan under the Bond Loan Agreement, this
Agreement or the Deeds of Trust, and any and all renewals, extensions,
amendments and replacements of this Agreement, the Deeds of Trust, the
Bond Loan Agreement and any such other documents and instruments (the
Bond Loan Agreement, this Agreement, the Deeds of Trust and any other
documents and instruments now or hereafter executed and delivered in
connection with the Bond Loan, the Bond Loan Agreement and any and all
amendments, renewals, extensions and
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replacements hereof and thereof, being sometimes referred to
collectively as the "Bond Instruments"; the Notes Instruments and the
Bond Instruments are hereinafter sometimes collectively referred to as
the "Debt Instruments").
ARTICLE 3
DEBTOR REPRESENTATIONS AND WARRANTIES
Debtor represents and warrants to Secured Parties that:
Section 3.1 Warranty of Title. Debtor has good title to all of the
Collateral, free and clear of all liens, encumbrances, charges and security
interests whatsoever except for the Authorized Liens (as defined in each of the
respective Deeds of Trust). This Agreement creates valid, enforceable second
priority security interests against the Collateral subject only to the Permitted
Encumbrances (as defined in each of the respective Deeds of Trust) and the lien
of the First Secured Party under the First Lien Documents.
Section 3.2 Financing Statements. As of the date hereof, no financing
statements covering the Collateral are on file in any public office, except the
financing statements relating to the security interest created hereby and
financing statements filed in connection with the First Lien Documents.
Section 3.3 Power and Authority. Debtor has full power, authority and
legal right to execute this Agreement and to pledge, assign, sell, transfer and
warrant the Collateral pursuant to the terms hereof and to keep and observe all
of the terms hereof and has obtained all consents required to grant to Secured
Parties a security interest in the Collateral.
Section 3.4 Valid Obligations. Debtor has duly executed and delivered
this Agreement and this Agreement constitutes a legal, valid and binding
obligation of Debtor, enforceable against it in accordance with the terms of
this Agreement.
Section 3.5 Place of Business; Jurisdiction of Incorporation. Debtor's
principal place of business is located in Xxxxxxx County, West Virginia and its
chief executive office is located in Brooke County, West Virginia at the address
set forth in the first paragraph of this Agreement. Debtor is incorporated and
existing under the laws of the State of Delaware and its Delaware corporate
identification number is ____________. Debtor is duly authorized to transact
business in the State of West Virginia.
ARTCILE 4
DEBTOR COVENANTS
Debtor covenants and agrees that:
Section 4.1 Obligations and this Security Agreement. Debtor shall
perform promptly all of its agreements herein.
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Section 4.2 Collection; Secured Party's Costs. Debtor shall pay all
costs necessary to obtain, preserve, perfect, defend and enforce the security
interests hereby granted and preserve, defend, enforce and collect the
Collateral. Whether Collateral is or is not in the possession of the Secured
Parties, and without any obligation to do so and without waiving Debtor's
default for failure to make any such payment, either of the Secured Parties at
its option, may pay any such costs and expenses and/or discharge encumbrances on
Collateral, and such payment shall be a part of the Obligations. Debtor agrees
to reimburse such Secured Party on demand for any costs so incurred.
Section 4.3 Additional Documents. Debtor shall sign any papers
reasonably furnished by the Secured Parties or do and perform such other acts
and things which are reasonably necessary in the judgment of the Secured Parties
to obtain, maintain and perfect the security interests created hereby and to
enable the Secured Parties to comply with the Federal Assignment of Claims Act
or any other federal or state law necessary to obtain or perfect the Secured
Parties' interests in Collateral or to obtain proceeds of Collateral.
Section 4.4 Delivery of Receipts to Secured Party. Subject to the
rights of the First Secured Party under the First Lien Documents, upon Secured
Parties' demand and to the extent required under the Debt Instruments, Debtor
will deposit, upon receipt, all checks, drafts, cash or other remittances
received as proceeds of any Collateral in a special bank account in a bank of
Secured Parties' choice over which Secured Parties alone shall have power of
withdrawal. The funds in said account shall be held by Secured Parties or the
Collateral Agent on their behalf as security for the Obligations. Said proceeds
shall be deposited in the form received, except the endorsement of Debtor where
necessary to permit collection of items, which endorsements Debtor agrees to
make, but which each of the Secured Parties is authorized to make on Debtor's
behalf. Pending such deposits, Debtor agrees that it will not mingle any such
checks, drafts, cash or remittances required to be deposited with any of the
Debtor's other funds or property, but will hold them separate and apart
therefrom and upon an express trust for the Secured Parties until deposit
thereof is made in the special account. Subject to the rights of the First
Secured Party under the First Lien Documents, Secured Parties may from time to
time apply the whole or any part of the funds in the special account against the
Obligations.
Section 4.5 Records of Collateral. Debtor at all times will maintain
accurate books and records covering the Collateral. Secured Parties are hereby
given the right to audit the books and records of Debtor relating to Collateral
upon reasonable written notice to Debtor.
Section 4.6 Notice of Changes. Debtor will notify the Secured Parties
of any change in the Collateral that could reasonably be expected to have a
material adverse effect on the Collateral as a whole, of a change in the
location of its principal place of business or chief executive offices, and of
any Event of Default (as hereinafter defined).
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Section 4.7 Waivers by Debtor. Debtor hereby waives (i) notices of the
creation, advance, increase, existence, extension or renewal of, and of any
indulgence with respect to, the Obligations, (ii) presentment, demand, notice of
dishonor, and protest, and (iii) notice of the amount of the Obligations
outstanding at any time, notice of any change in financial condition of any
person liable for the Obligations or any part thereof, notice of any Event of
Default, and all other notices respecting the Obligations; and agrees that
maturity of the Obligations and any part thereof may be accelerated, extended or
renewed one or more times by the Secured Parties in their discretion, without
notice to Debtor.
Section 4.8 Other Parties and Other Collateral. No renewal or extension
of or any other indulgence with respect to the Obligations or any part thereof,
no release of any security, no release of any person (including any maker,
endorser, guarantor or surety) liable on the Obligations, no delay in
enforcement of payment, and no delay or omission or lack of diligence or care in
exercising any right or power with respect to the Obligations or any security
therefor or guaranty thereof or under this Agreement shall in any manner impair
or affect the rights of the Secured Parties under the law, hereunder, or under
any other agreement pertaining to the Collateral. Secured Parties need not file
suit or assert a claim for personal judgment against any person for any part of
the Obligations or seek to realize upon any other security for the Obligations,
before foreclosing upon the Collateral for the purpose of paying the
Obligations. Debtor waives any right to the benefit of or to require or control
application of any other security or proceeds thereof, and agrees that the
Secured Parties shall have no duty or obligation to Debtor to apply to the
Obligations any such other security or proceeds thereof.
Section 4.9 Change of Name, Identity or Structure. Debtor will not
change Debtor's name or its jurisdiction of incorporation without providing
thirty (30) days prior written notice to the Secured Parties.
Section 4.10 Covenants Respecting Taxes, Liens and Care of Collateral.
Each of the covenants set forth in Sections 1.4, 1.5 and 1.8 of the respective
Deeds of Trust shall also be applicable to the Collateral to the same extent as
if such covenants were set forth herein in their entirety and were specifically
made applicable to the Collateral, this Agreement and/or the Obligations, as
applicable. Such covenants are hereby incorporated herein by reference as if
fully set forth herein, modified, as applicable, to apply to the Collateral
(rather than the "Property"), this Agreement (rather than the "Deed of Trust")
and the Obligations (rather than the "Borrower's Liabilities").
Section 4.11 Liens on Collateral. Debtor shall keep the Collateral free
from all liens, encumbrances, charges and security interests except for the
security interest hereby created and except for Authorized Liens.
Section 4.12 Transfer or Encumbrance of Collateral. Debtor shall not
permit or suffer to occur any sale, assignment, conveyance, transfer, mortgage,
lease or encumbrance of the Collateral, any part thereof, or any interest
therein in violation of the Debt Instruments.
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ARTICLE 5
DEBTOR/CREDITOR RELATIONSHIP
Section 5.1 Relationship of Debtor and Secured Party. The relationship
between Debtor and each of the Secured Parties is solely that of debtor and
creditor, and neither of the Secured Parties has any fiduciary or other special
relationship with Debtor, and no term or condition of the Debt Instruments shall
be construed so as to deem the relationship between Debtor and either of the
Secured Parties to be other than that of debtor and creditor.
ARTICLE 6
FURTHER ASSURANCES
Section 6.1 Recording of Security Instrument, Etc. Debtor forthwith
upon the execution and delivery of this Agreement and thereafter, from time to
time, will cause this Agreement and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect and perfect the lien or security interest hereof upon, and the interest
of Secured Parties in, the Collateral. Debtor will pay all taxes, filing,
registration or recording fees, and all expenses incident to the preparation,
execution, acknowledgment and/or recording of the Debt Instruments and any note
or mortgage supplemental hereto, any security instrument with respect to the
Collateral and any instrument of further assurance, and any modification or
amendment of the foregoing documents, and all federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Agreement, any security
instrument with respect to the Collateral or any instrument of further
assurance, and any modification or amendment of the foregoing documents, except
where prohibited by law so to do.
Section 6.2 Further Acts, Etc. Debtor will, at the cost of Debtor, and
without expense to the Secured Parties, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments, notices
of assignments, transfers and assurances as Secured Parties shall, from time to
time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Secured Parties the property and rights hereby
granted, confirmed, pledged, assigned, and warranted or intended now or
hereafter so to be, or which Debtor may be or may hereafter become bound to
convey or assign to Secured Parties, or for carrying out the intention or
facilitating the performance of the terms of the Agreement.
Section 6.3 Amended Financing Statements. Debtor will execute and
deliver to the Secured Parties, prior to or contemporaneously with the effective
date of any such change, any financing statement or change thereof required by
the Secured Parties to establish or maintain the validity, perfection and
priority of the security interest granted herein. At the request of the Secured
Parties, Debtor shall execute a certificate in form satisfactory to the Secured
Parties listing the trade names under which Debtor intends to
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operate the Collateral, and representing and warranting that Debtor does
business under no other trade name with respect to the Collateral.
ARTICLE 7
DEFAULT
Section 7.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default hereunder ("Event of
Default"):
(a) an "Event of Default" under and as defined in the Notes Indenture
or any of the other Notes Instruments;
(b) an "Event of Default" under and as defined in the Bond Loan
Agreement or any of the other Bond Instruments; and
(c) a failure by Debtor to timely perform or observe any material
covenant, obligation or liability contained in this Agreement and, unless such
failure is an "Event of Default" under Section 7.1(a) or (b) above, such failure
is not cured within sixty (60) days after the sooner to occur of (i) Debtor's
receipt of notice of such failure from the Secured Parties or either one or (ii)
the date on which such failure first becomes known to any officer of Debtor.
ARTICLE 8
RIGHTS AND REMEDIES
Section 8.1 Remedies. 1. Subject to the rights of the First Secured
Party under the First Lien Documents to the extent then in effect, upon the
occurrence of any Event of Default and at any time thereafter, Debtor agrees
that the Secured Parties may declare the Obligations in whole or in part
immediately due and payable and may enforce payment of the same and take such
action, without notice or demand, as they deem advisable to protect and enforce
their rights against Debtor and in and to the Collateral, including, but not
limited to the following, each of which may be pursued concurrently or
otherwise, at such time and in such order as the Secured Parties may determine,
in their sole discretion, without impairing or otherwise affecting the other
rights and remedies of the Secured Parties:
(i) exercise any and all rights and remedies granted to a secured party
upon default under the UCC, as amended from time to time, or any other
applicable uniform commercial code, or any other statute or rule of law or
equity or under the provisions of any third party agreement in favor of the
Secured Parties, all of which may be exercised successively or concurrently,
including, without limiting the generality of the foregoing: (i) the right to
take possession of the Collateral or any part thereof, and to take such other
measures as Secured Parties may deem necessary for the care, protection and
preservation of the Collateral, and (ii) request Debtor at its expense to
assemble the Collateral and make it available to Secured Parties at a convenient
place in Weirton, West Virginia
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acceptable to Secured Parties; further, Secured Parties may sell, assign, give
option or options to purchase, contract to sell or otherwise dispose of and
deliver the Collateral, or any part thereof, in one or more lots at public or
private sale or sales, at any exchange, broker's board or at any of the Secured
Parties' offices or elsewhere upon such terms and conditions as they may deem
advisable and at such prices as they may deem best, for cash or on credit or for
future delivery without assumption of any credit risk, with the right to the
Secured Parties upon any such sale or sales, public or private, to purchase the
whole or any part of said Collateral so sold, free of any right or equity of
redemption in the Debtor, which right or equity is, to the extent permitted by
law, hereby expressly waived or released. Any notice of sale, disposition or
other intended action by Secured Parties with respect to the Collateral sent to
Debtor in accordance with the provisions hereof at least ten (10) days prior to
such action, shall constitute commercially reasonable notice to Debtor; and
(ii) exercise all other rights and remedies of the Secured Parties
under this Agreement and all other rights and remedies available to the Secured
Parties under applicable law.
(b) The Secured Parties will give Debtor reasonable notice of the time
and place of any public sale of the Collateral or of the time after which any
private sale or other intended disposition thereof is to be made. Expenses of
retaking, holding, preparing for sale, selling, leasing or the like shall
include Secured Parties' reasonable attorney's fees and legal expenses. The
Debtor acknowledges and agrees that any private sale of the Collateral may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees, to the extent permitted by
applicable law, that any such private sale shall be deemed to have been made in
a commercially reasonable manner. To the extent permitted by the laws of the
State of West Virginia, in the event of a sale, by foreclosure, power of sale,
or otherwise, of less than all of the Collateral, this Agreement shall continue
as a lien and security interest on the remaining portion of the Collateral
unimpaired and without loss of priority.
Section 8.2 Application of Proceeds. Subject to the rights of the First
Secured Party under the First Lien Documents, after deducting all reasonable
costs and expenses of every kind incurred by the Secured Parties or incidental
to the care, safekeeping or otherwise of any and all of the Collateral, the
purchase money, proceeds and avails of any disposition of the Collateral, or any
part thereof, or any other sums collected by the Secured Parties pursuant to
this Agreement or the Deeds of Trust, may be applied by the Secured Parties to
the payment of the Obligations in accordance with the Second Lien Intercreditor
Agreement to the extent then in effect. Only after credit against the
Obligations and after the payment by the Secured Parties of any other amount
required by any provision of law, including, without limitation, the UCC, need
the Secured Parties' account for the surplus, if any, to the Debtor.
Section 8.3 Waiver of Rights Under UCC; Deficiency. The Debtor shall be
liable for the deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay all amounts to which the Secured Parties
are entitled and the
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reasonable costs, fees and expenses of any attorney employed by the Secured
Parties to collect such deficiency.
Section 8.4 Actions and Proceedings. After the occurrence and during
the continuance of an Event of Default, the Secured Parties have the right to
appear in and defend any action or proceeding brought with respect to the
Collateral and to bring any action or proceeding, in the name and on behalf of
Debtor, which Secured Parties, in their discretion, decide should be brought to
protect their interest in the Collateral.
Section 8.5 Other Rights, Etc. 1. No delay or failure of the Secured
Parties in the exercise of any right or remedy hereunder shall operate as a
waiver thereof, and no single or partial exercise of any right or remedy
hereunder shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action or forbearance by the Secured Parties
contrary to the provisions of this Agreement shall be construed to constitute a
waiver of any of the express provisions hereof. The Secured Parties may
specifically waive any of their rights under this Agreement without invalidating
the entire Agreement. Nothing herein contained, nor anything done or omitted to
be done by the Secured Parties pursuant hereto, shall be deemed a waiver by the
Secured Parties of any of their rights or remedies hereunder or under any of the
Debt Instruments or under applicable law.
(b) The rights of the Secured Parties under this Agreement shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of the Secured Parties shall be construed as an
election to proceed under any one provision herein to the exclusion of any other
provision. The Secured Parties shall not be limited exclusively to the rights
and remedies herein stated but shall be entitled to every right and remedy now
or hereafter afforded at law or in equity.
Section 8.6 Right to Release any Portion of the Collateral. The Secured
Parties, or the Collateral Agent on their behalf to the extent provided in the
Debt Instruments, may release any portion of the Collateral for such
consideration as Secured Parties or Collateral Agent, as applicable, may require
and in accordance with the terms of the Debt Instruments without, as to the
remainder of the Collateral, in any way impairing or affecting the lien or
priority of this Agreement, or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the obligations
hereunder shall have been reduced by the actual monetary consideration, if any,
received by Secured Parties for such release, and may accept by assignment,
pledge or otherwise any other property in place thereof as Secured Parties may
require without being accountable for so doing to any other lienholder. This
Agreement shall continue as a lien and security interest in the remaining
portion of the Collateral.
Section 8.7 Right of Entry. Each of the Secured Parties and its agents
shall have the right upon prior written notice to enter and inspect the
Collateral at all reasonable times upon reasonable advance notice to Debtor.
Section 8.8 Exercise of Remedies by Secured Parties. Notwithstanding
anything to the contrary contained herein, the ability of a Secured Party to
accelerate the
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Debtor's Obligations hereunder and/or exercise any of the remedies provided for
in this Article 8, shall be subject to and governed by any limitations or
restrictions on such rights as may be set forth in the Notes Indenture (if such
Secured Party is the Notes Secured Party) or the Bond Loan Agreement (if such
Secured Party is the Bond Secured Party), and in either case, by any limitations
or restrictions on such rights as may be set forth in the First Lien
Intercreditor Agreement to the extent then in effect (provided, however, for
purposes of the foregoing and in the interest of clarity, Debtor is not intended
to be a third party beneficiary of the limitations and restrictions on the
Secured Parties' rights to accelerate and exercise remedies contained in the
First Lien Intercreditor Agreement).
ARTICLE 9
WAIVERS
Section 9.1 Waivers by Debtor. DEBTOR WAIVES (a) PRESENTMENT, DEMAND
AND PROTEST AND NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON-PAYMENT, MATURITY,
RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL
PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND
GUARANTIES AT ANY TIME HELD BY THE SECURED PARTIES ON WHICH DEBTOR MAY IN ANY
WAY BE LIABLE AND HEREBY RATIFIES AND CONFIRMS WHATEVER SECURED PARTIES MAY DO
IN THIS REGARD; (b) NOTICE PRIOR TO SECURED PARTIES' TAKING POSSESSION OR
CONTROL OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY
COURT PRIOR TO ALLOWING THE SECURED PARTIES TO EXERCISE ANY OF SECURED PARTIES'
REMEDIES; (c) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION LAWS; AND
(d) NOTICE OF ACCEPTANCE HEREOF.
Section 9.2 Waiver of Trial By Jury. DEBTOR AND SECURED PARTIES HEREBY
WAIVE ANY RESPECTIVE RIGHT THEY MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT
IT HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
ARTICLE 10
NOTICES
Section 10.1 Notices. All notices, consents, approvals or other
communications required under the terms and provisions of this Agreement shall
be in writing and sent to the following addresses:
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If to Notes Secured Party: X.X. Xxxxxx Trust Company,
National Association
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Attention:
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Facsimile No.
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If to Bond Secured Party: X.X. Xxxxxx Trust Company,
National Association
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Attention:
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Facsimile No.
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If to Debtor: Weirton Steel Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Secretary and General Counsel
Facsimile No. (000) 000-0000
Notices shall be deemed to have been duly given (a) if delivered personally or
otherwise actually received, (b) if sent by overnight delivery service, (c) if
mailed by first class United States mail, postage prepaid, registered or
certified, with return receipt requested, or (d) if sent by facsimile. Notice
mailed as provided in clause (c) above shall be effective on the earlier of the
date of actual receipt or three (3) business days after its deposit. Notice
given in any other manner described in this paragraph shall be effective upon
receipt by the addressee thereof; provided, however, that if any notice is
tendered to an addressee and delivery thereof is refused by such addressee, such
notice shall be effective upon such tender.
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.1 Choice of Law. This agreement shall be governed,
construed, applied and enforced in accordance with the laws of the State of West
Virginia, without regard to the principles of conflicts of laws.
Section 11.2 Provisions Subject to Applicable Law. All rights, powers
and remedies provided in this Agreement may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law.
Section 11.3 Inapplicable Provision. If any term of this Agreement or
any application thereof shall be invalid or unenforceable, the remainder of this
Agreement and any other application of the term shall not be affected thereby.
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Section 11.4 Attorney's Fees for Enforcement. Debtor shall pay, on
demand, any and all expenses, including legal expenses and reasonable attorneys'
fees, incurred or paid by any Secured Party in protecting its interest in the
Collateral or in collecting any amount payable hereunder or in enforcing its
rights hereunder with respect to the Collateral, whether or not any legal
proceeding is commenced hereunder or thereunder and whether or not any default
or Event of Default shall have occurred and is continuing, together with
interest thereon at the Default Rate (as such term is defined in the respective
Deeds of Trust) from the date paid or incurred by such Secured Party until such
expenses are paid by Debtor.
Section 11.5 General Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Agreement may be used interchangeably in singular or plural form and the
word "Debtor" shall mean "each Debtor and any subsequent owner or owners of the
Collateral or any part thereof or any interest therein," the word "Secured
Party" or "Secured Parties" shall mean "Secured Party[ies] and any subsequent
holder of the Obligations," the word "person" shall include an individual,
corporation, limited liability company, partnership, trust, unincorporated
association, government, governmental authority, and any other entity, the word
"Collateral" shall include any portion of the Collateral and any interest
therein, and the phrases "attorneys' fees" and "counsel fees" shall include any
and all reasonable attorneys', paralegal and law clerk fees and disbursements,
including, but not limited to fees and disbursements at the pre-trial, trial and
appellate levels incurred or paid by any Secured Party in protecting its
interest in the Collateral and enforcing its rights under the this Agreement.
Section 11.6 Headings, Etc. The headings and captions of various
Sections of this Agreement are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
Section 11.7 No Oral Change. This Agreement and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Debtor or
either of the Secured Parties, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
Section 11.8 Liability. This Agreement shall be binding upon the Debtor
and its successors and assigns and shall inure to the benefit of the Secured
Parties and their respective successors and assigns.
Section 11.9 Number and Gender. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 11.10 Preference. To the extent that either of the Secured
Parties receives any payment or proceeds of the Collateral for the Obligations,
which payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or
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preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
Obligations or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment or proceeds had not been
received by such Secured Party.
Section 11.11 Cumulative Remedies. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently and are not
exclusive of any right or remedy provided by law.
Section 11.12 No Partial Release. The satisfaction or discharge of any
part of the Obligations hereby secured shall not in any way satisfy or discharge
this Agreement, but this Agreement shall remain in full force and effect so long
as any of the Obligations remain outstanding.
Section 11.13 Limitation of Liability. Neither of the Secured Parties
nor any of their respective officers, directors, employees, agents or counsel
shall be liable for any action lawfully taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their gross
negligence or willful misconduct.
Section 11.14 Taxes. Should any documentary stamp or other tax now or
hereafter become payable with respect to this Agreement or its execution or
delivery, Debtor will promptly, following demand therefor, pay the same and hold
Secured Parties harmless from the cost of same.
Section 11.15 First Lien Documents. With respect to that certain
Amended and Restated Loan and Security Agreement, dated as of ____________,
2002, by and among the Debtor, the First Secured Party, the other agent party
thereto and the lenders from time to time party thereto (the "Senior Loan
Agreement") and the other Loan Instruments (as defined in the Mortgages (as such
term is defined in the Senior Loan Agreement)) (together with the First Lien
Intercreditor Agreement, collectively, the "First Lien Documents"); Debtor
covenants and agrees to give the Secured Parties notice of any uncured default
following any applicable grace period by any party under the First Lien
Documents within ten (10) days of Debtor becoming aware of such default and
promptly to deliver to the Secured Parties a copy of each notice of default and
all other notices, amendments, communications, plans, specifications and other
statements, responses, similar instruments received or delivered by Debtor
relating thereto.
Section 11.16 Subordination. (a) Each Secured Party acknowledges and
agrees that its respective security interests and rights hereunder are subject
to the rights of the First Secured Party as set forth in the First Lien
Documents.
(b) Each Secured Party agrees to subordinate the lien of this Agreement
to (i) the lien described in subparagraph (a) of the definition of "Permitted
Liens" as set forth in (A) the Notes Indenture until the full repayment of the
Notes Debt and the termination and release of the Notes Secured Party's interest
in this Agreement, and thereafter, (B) the Bond Loan Agreement, and (ii) the
lien described in subparagraph (p) of the definition of
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"Permitted Liens" (but only to the extent such lien secures refinancing
indebtedness secured by a lien referred to in subparagraph (a) of the definition
of "Permitted Liens") as set forth in (A) the Notes Indenture until full
repayment of the Notes Debt and termination and release of the Notes
Beneficiary's interest in this Agreement, and thereafter, (B) the Bond Loan
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by Debtor as of
the day and year first above written.
WEIRTON STEEL CORPORATION,
a Delaware corporation
By:
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Name:
Title:
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