Exhibit 4.11
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CITY OF WEIRTON, WEST VIRGINIA
AND
WEIRTON STEEL CORPORATION
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LOAN AGREEMENT
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Dated as of December __, 2001
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The interest of the City of Weirton, West Virginia, in this Loan Agreement
(except for rights pursuant to, and amounts payable under, Sections 4.2(b), 6.2
and 7.4 hereof) has been assigned pursuant to the Indenture of Trust, dated as
of the date hereof, from the City of Weirton, West Virginia, to Chase Manhattan
Trust Company, National Association, as the Trustee, and is subject to the
security interest of Chase Manhattan Trust Company, National Association, as the
Trustee.
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Loan Agreement
and is only for convenience of reference.)
Page
ARTICLE I DEFINITIONS....................................................... 1
Section 1.1. Definition of Terms............................... 1
Section 1.2 Incorporation of Certain Definitions by
Reference.................................... 8
ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES........................ 9
Section 2.1. Representations, Covenants and Warranties of
the Issuer................................... 9
ARTICLE III ISSUANCE OF THE BONDS........................................... 10
Section 3.1. Agreement to Issue Secured Series 2001 Bonds...... 10
Section 3.2. Investment of Moneys in the Bond Fund............. 10
ARTICLE IV LOAN PROVISIONS.................................................. 10
Section 4.1. Transferred Loan Balance.......................... 10
Section 4.2. Repayment of Transferred Loan Balance; Payment
of Other Costs and Expenses; Purchase of
Bonds......................................... 11
Section 4.3. Obligations of Company Hereunder Unconditional.... 12
Section 4.4. Assignment to the Trustee......................... 12
ARTICLE V SPECIAL COVENANTS................................................. 12
Section 5.1. Further Assurance and Corrective Instruments...... 12
Section 5.2. Authorized Representatives........................ 12
Section 5.3. Certain Tax Representations and Covenants of
the Issuer and the Company................... 12
Section 5.4. Financial Reports................................. 13
Section 5.5. Limitations on Liens.............................. 13
Section 5.6. Limitations on Sale and Leaseback Transactions.... 13
Section 5.7. When Company May Merge, etc....................... 14
Section 5.8. Impairment of Security Interest................... 14
ARTICLE VI ASSIGNMENT, INDEMNIFICATION AND REDEMPTION....................... 14
Section 6.1. Assignment of Agreement........................... 14
Section 6.2. Release and Indemnification....................... 15
Section 6.3. Redemption of Bonds............................... 15
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES.................................. 16
Section 7.1. Events of Default Defined......................... 16
Section 7.2. Remedies on Default............................... 17
Section 7.3. No Remedy Exclusive............................... 17
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses..... 18
(i)
Section 7.5. No Additional Waiver Implied by one Waiver........ 18
ARTICLE VIII PREPAYMENT OF LOAN............................................. 18
Section 8.1. Options to Terminate at Any Time.................. 18
Section 8.2. Relative Position of Options and the Indenture.... 19
ARTICLE IX MISCELLANEOUS 19
Section 9.1. Term of Agreement................................. 19
Section 9.2. Notices........................................... 20
Section 9.3. Binding Effect.................................... 20
Section 9.4. Severability...................................... 20
Section 9.5. Amounts Remaining in Bond Fund.................... 20
Section 9.6. Amendments, Changes and Modifications............. 20
Section 9.7. Execution in Counterparts......................... 21
Section 9.8. Applicable Law.................................... 21
Section 9.9. Captions.......................................... 21
TESTIMONIUM...................................................................
SIGNATURES AND SEALS ........................................................
(ii)
THIS LOAN AGREEMENT, dated as of December __, 2001 is between the CITY OF
WEIRTON, WEST VIRGINIA (the "Issuer"), a public corporation and an incorporated
municipality duly organized and existing under the Constitution and laws of the
State of West Virginia, and WEIRTON STEEL CORPORATION (the "Company"), a
corporation incorporated under the laws of the State of Delaware and qualified
to do business in the State of West Virginia.
W I T N E S S E T H :
WHEREAS, pursuant to and in accordance with the provisions of the
Industrial Development and Commercial Development Bond Act, Chapter 13, Article
2C, West Virginia Code, as amended (the "Act"), by Resolution of the City
Council of the Issuer, and in furtherance of the purposes of the Act, the Issuer
proposes to refund its $56,300,000 Pollution Control Revenue Refunding Bonds
(Weirton Steel Corporation Project) Series 1989 (the "Prior Bonds");
WHEREAS, the Issuer proposes to finance the refunding of the Prior Bonds by
the issuance of its Pollution Control Revenue Refunding Bonds (Weirton Steel
Corporation Project) Series 2001 (referred to herein as the "Bonds" or the
"Secured Series 2001 Bonds") under an indenture of trust; and
WHEREAS, the Issuer proposes to refund the Prior Bonds by exchanging them
for the Secured Series 2001 Bonds; and
WHEREAS, the Company has agreed to enter into a deed of trust in order to
provide security for the Company's obligations under this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITION OF TERMS. The following words and terms as used in
this Agreement shall have the following meanings unless the context or use
indicates another or different meaning or intent:
"ACT" means the Industrial Development and Commercial Development Bond Act,
Chapter 13, Article 2C, West Virginia Code, as amended.
"AGREEMENT" means this Loan Agreement, dated as of December __, 2001, by
and between the Issuer and the Company, as the same may be amended from time to
time.
"ATTRIBUTABLE DEBT" means, with respect to any sale and leaseback
transaction, at the date of determination, the present value (discounted at the
rate of interest implicit in the terms of the lease) of the obligation of the
lessee for net rental payments during the remaining term of the lease (including
any period for which such lease has been extended or may, at the
option of the lessor, be extended); provided, however, there shall not be deemed
to be any Attributable Debt in respect of any sale and leaseback transaction if
the Company or a Subsidiary would be entitled pursuant to the provisions of
clauses (a) through (i) under the definition of "Permitted Liens" to issue,
assume or guarantee debt secured by a mortgage upon the property involved in
such transaction without equally and ratably securing the Secured Series 2001
Bonds. "Net rental payments" under any lease for any period means the sum of
such rental and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amount required to be paid by such
lessee (whether or not designated as rent or additional rent) on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges.
"AUTHORIZED INVESTMENTS" means (i) obligations of the State or the United
States of America, (ii) obligations the principal of and interest on which are
fully guaranteed by the State or the United States of America, (iii) obligations
of any agency of the United States of America which may from time to time be
legally purchased by savings banks within the State as an investment of funds
belonging to them or under their control, (iv) certificates of deposit issued
by, or time deposits with, any bank, trust company or national banking
association having a combined capital and surplus of at least $50,000,000
(including the Trustee), (v) repurchase agreements fully collateralized by
obligations of the type specified in (i) and (ii) above (including repurchase
agreements with the Trustee as seller and repurchaser), (vi) commercial or
finance paper of any Person other than the Company or any Related Person, rated
P-1 by Xxxxx'x Investor's Services, Inc. or A-1 by Standard & Poor's
Corporation, or (vii) Eurodollar deposits or other obligations with the London
branches of United States or Japanese banks.
"AUTHORIZED REPRESENTATIVE" means, in the case of the Issuer, the Mayor,
the Vice-Mayor or Clerk of the Issuer; in the case of the Company, its president
or any vice president, and, in the case of both, such additional persons as, at
the time, are designated to act on behalf of the Issuer or the Company, as the
case may be, by written certificate furnished to the Trustee, the Issuer or the
Company, as the case may be, containing the specimen signature of each such
person and signed on behalf of (i) the Issuer by the Major, the Vice-Mayor or
Clerk of the Issuer and (ii) the Company by its president or any vice president.
"BOND" or "BONDS" means the Secured Series 2001 Bonds and any Bonds
exchanged therefor in accordance with Section 2.09 of the Indenture.
"BOND COUNSEL" means the firm of Steptoe & Xxxxxxx PLLC, Charleston, West
Virginia, or any other attorney or firm of attorneys whose experience in matters
relating to the issuance of obligations by states and their political
subdivisions is nationally recognized.
"BOND FUND" means the fund so designated which is created by Section 4.01
of the Indenture.
"BONDHOLDER" or "HOLDER" or "OWNER" means the registered owner of any Bond
as its name appears in the registration books of the Issuer maintained by the
Trustee as Bond Registrar.
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"BOND PAYMENT DATE" means any Interest Payment Date and each date on which
principal shall be payable on or with respect to any of the Secured Series 2001
Bonds according to their respective terms so long as any of the Secured Series
2001 Bonds shall be Outstanding.
"BUSINESS DAY" means any day of the week other than a Saturday, Sunday or
legal holiday in The City of New York, New York, or the City of Pittsburgh,
Pennsylvania, or a day on which banking institutions in The City of New York,
New York, or the City of Pittsburgh, Pennsylvania, are authorized by law to
close.
"CAPITAL STOCK" means stock of any class or classes (however designated)
the holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association or other business entity in
question, even though the right to do so is at the time suspended by reason of
the happening of such contingency.
"COLLATERAL" shall mean any assets of the Company constituting collateral
as set forth in the Deed of Trust.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations.
"COMPANY" means (i) Weirton Steel Corporation and its successors and
assigns, and (ii) any surviving, resulting or transferee entity.
"COMPANY INDENTURE" means the Indenture dated as of January __, 2002,
between the Company, as issuer, and Chase Manhattan Trust Company, National
Association, as trustee, relating to the issuance by the Company of its 10%
Senior Secured Discount Notes due 2008, as such Indenture may be amended or
supplemented from time to time.
"CONDEMNATION" means the taking of title to, or the use of, Property, or
transfer in lieu thereof, under the exercise of the power of eminent domain by
any governmental entity or other Person acting under governmental authority.
"DEBT SERVICE PAYMENT" means, with respect to any Bond Payment Date,
whether any such payment shall be due at maturity or upon redemption or
acceleration of the Bonds or otherwise, (i) the interest payable on each such
Bond Payment Date on all Bonds then Outstanding, plus (ii) the principal, if
any, payable on such Bond Payment Date on all such Bonds, plus (iii) the
premium, if any, payable on such Bond Payment Date on all such Bonds.
"DEED OF TRUST" means the Deed of Trust dated as of December __, 2001, by
and between the Company and _____, as trustee, pursuant to which the Company
will secure its obligations under this Agreement to the extent of the collateral
described therein.
"EVENT OF DEFAULT" or "DEFAULT" means any Event of Default under this
Agreement as specified in and determined by Section 7.1 hereof.
"EXCHANGE" means the exchange of the Secured Series 2001 Bonds for the
Series 1989 Bonds contemplated by this Agreement and the Official Statement.
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"GOVERNMENT OBLIGATIONS" means direct general obligations of, or
obligations the payment of the principal of and interest on which are fully
guaranteed by, the United States of America which are noncallable and which at
the time of investment are legal investments under the laws of the State for the
money proposed to be invested therein.
"INDEBTEDNESS" means, without duplication, (i) any liability of any entity
(A) for borrowed money, or under any reimbursement obligation relating to a
letter of credit, (B) evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation) given in connection with the acquisition
of any businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures, or (C) in respect of capitalized lease
obligations; (ii) any liability of others described in the preceding clause (i)
that the entity has guaranteed or that is otherwise its legal liability; (iii)
to the extent not otherwise included, obligations under Currency Agreements,
Commodity Agreements or Interest Protection Agreements (as such terms are
defined in the Company Indenture); (iv) all Disqualified Stock (as such term is
defined in the Company Indenture) valued at the greatest amount payable in
respect thereof on a liquidation (whether voluntary or involuntary) plus accrued
and unpaid dividends; and (v) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (i)-(iv) above, provided that Indebtedness shall not include accounts
payable (including, without limitation, accounts payable to the Company by any
Subsidiary or to any such Subsidiary by the Company or any other Subsidiary, in
each case, in accordance with customary industry practice) or liabilities to
trade creditors of any entity arising in the ordinary course of business.
"INDENTURE" means the Indenture of Trust, by and between the Issuer and the
Trustee, dated as of December __, 2001, as the same may be amended or
supplemented from time to time.
"INDEPENDENT COUNSEL" means an attorney or firm of attorneys duly admitted
to practice law before the highest court in any state of the United States of
America or in the District of Columbia and not a full-time employee of the
Issuer, the Company or the Trustee.
"INTEREST PAYMENT DATE" means each date on which interest shall be payable
on any of the Bonds in accordance with their terms.
"ISSUER" means (i) City of Weirton, West Virginia, and its successors and
assigns, and (ii) any public corporation or political subdivision resulting from
or surviving any consolidation or merger to which the Issuer or its successors
or assigns may be a party.
"LIEN" means any interest in Property securing an obligation owed to a
Person, whether such interest is based on the common law, statute or contract,
including, but not limited to, a security interest arising from a mortgage,
encumbrance, pledge, conditional sale or trust receipt or from a lease,
consignment or bailment for security purposes.
"OFFICIAL STATEMENT" means the Official Statement of the Issuer dated
December __, 2001 relating to the Secured Series 2001 Bonds.
"OUTSTANDING" or "BONDS OUTSTANDING" or "OUTSTANDING BONDS" means as of any
date, all Secured Series 2001 Bonds theretofore authenticated and delivered by
the Trustee under
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the Indenture, or any supplement thereto, except: (i) any Bond cancelled by the
Trustee because of payment at maturity, whether at its stated maturity or upon
call for redemption prior to maturity; (ii) any Bond for the payment of the
principal or redemption price of and interest on which moneys or Government
Obligations have been deposited with the Trustee on or prior to its date of
maturity, whether at its stated maturity or upon call for redemption prior to
maturity, other than as part of a defeasance of all the Bonds pursuant to
Article VI of the Indenture; (iii) any Bond deemed to be paid in accordance with
Section 6.02 of the Indenture, except that any such Bond shall be deemed
Outstanding until its date of actual payment, whether at its stated maturity or
upon call for redemption prior to maturity, solely for the purpose of being
exchanged or reregistered; and (iv) any Bond in lieu of or in substitution for
which another Bond shall have been authenticated and delivered or which shall
have been paid pursuant to Section 2.09 of the Indenture, unless proof
satisfactory to the Trustee is presented that any Bond, for which a Bond in lieu
of or in substitution therefor shall have been authenticated and delivered, is
held by a bona fide purchaser, as that term is defined in Article 8 of the
Uniform Commercial Code of the State, as amended, in which case both the Bond so
substituted and replaced and the Bond or Bonds authenticated and delivered in
lieu thereof or in substitution therefor shall be deemed Outstanding.
"PAYING AGENT" means the Trustee, acting as paying agent under the
Indenture, and any additional paying agent for the Bonds appointed pursuant to
Article VIII of the Indenture, their respective successors and any other
corporation which may at any time be substituted in their respective places
pursuant to the Indenture.
"PERMITTED LIENS" means:
(a) Liens on the assets of the Company and any Subsidiary securing
Indebtedness and other obligations under the Credit Facility (as such
term is defined in the Company Indenture) and the Vendor Financing
Programs;
(b) Liens in favor of the Company or its Subsidiaries;
(c) Liens on property or shares of Capital Stock of a Person existing at
the time such Person is acquired by or merged with or into or
consolidated with the Company or any of its Subsidiaries; provided,
however, that such Liens were in existence prior to the consummation of
such acquisition, merger or consolidation and do not extend to any
property other than the property or shares of Capital Stock being
acquired by the Company or its Subsidiaries (other than property
affixed or appurtenant thereto);
(d) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(e) Liens to secure up to $25,000,000 of Indebtedness permitted by clause
(a) of Section 3.9 of the Company Indenture or by clause (xi) of the
"Permitted Indebtedness" definition in the Company Indenture;
(f) Liens existing on the date of the Company Indenture;
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(g) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided, however, that any reserve or other appropriate provision as
shall be required in conformity with generally accepted accounting
principles shall have been made therefor;
(h) Liens securing industrial revenue or pollution control bonds for which
the Company has payment obligations; provided, however, that such Liens
relate solely to the project being financed;
(i) (i) Liens on assets subject to a sale and leaseback transaction
securing Attributable Debt permitted to be incurred pursuant to Section
3.9 of the Company Indenture, (ii) Liens in connection with a financing
or sale and leaseback transaction involving or relating to the No. 9
tin tandem mill, and (iii) Liens in connection with long-term tolling
or product supply agreements with respect to the use of the Collateral,
provided that the terms of such agreement do not, in the good faith
determination of the board of directors of the Company and taking into
account any additional collateral pledged to secure Senior Secured
Discount Notes, impair the value of the Collateral;
(j) Liens (i) arising from or in connection with clause (i) of the
"Permitted Indebtedness" definition in the Company Indenture or (ii)
incurred to finance the acquisition of property or assets acquired by
the Company or any of its Subsidiaries after the date of the Company
Indenture, so long as such Lien is created within 90 days of such
acquisition; provided that in either clause (i) or (ii), such Liens do
not extend to any property or assets other than the property or assets
acquired by the Company or its Subsidiaries;
(k) Minor survey exceptions, minor encumbrances, easements or reservations
of, or rights of others for, licenses, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of the Company or its
Subsidiaries or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not individually
or in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the
business of the Company;
(l) Liens arising from judgments or similar awards in an amount permitted
by the Credit Facility (as such term is defined in the Company
Indenture);
(m) Liens on the Company's hot strip mill effected (i) by the Deed of
Trust, or (ii) by the Company in a separate deed of trust for purposes
of securing the
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Company's obligations with respect to the Company's Senior Secured
Discount Notes; and
(n) Liens to secure any Refinancing Indebtedness secured by any Lien
referred to in the foregoing clause (c), (e), (f), or (h); provided,
however, that:
1. such new Lien shall be limited to all or part of the same property
and assets that secured or, under the written agreements pursuant to
which the original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or
distributions thereof); and
2. the Indebtedness secured by such Lien at such time is not increased
to any amount greater than the sum of (x) the outstanding principal
amount or, if greater, committed amount of the Indebtedness
described under clause (c), (e), (f), or (h) at the time the
original Lien became a Permitted Lien and (y) an amount necessary to
pay any fees and expenses, including premiums, related to such
refinancing, refunding, extensions, renewal or replacement.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government, governmental agency, public
benefit corporation or any political subdivision thereof.
"PROJECT" means the pollution control equipment heretofore installed in the
Company's steel manufacturing plant, located in the City of Weirton, West
Virginia, financed (or refinanced) with the proceeds of the Series 1989 Bonds
and presently owned by, or leased to, the Company.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"PRIOR BONDS" has the meaning set forth in the recitals to this Agreement.
"REFINANCING INDEBTEDNESS" means any renewals, extensions, substitutions,
refundings, refinancings or replacements of the Indebtedness referred to in
clauses (i) through (viii) of the definition of "Permitted Indebtedness" in the
Company Indenture.
"RELATED PERSON" means any Person constituting a "related person" within
the meaning ascribed to such quoted term in Section 144(a)(3) of the Code.
"SENIOR SECURED DISCOUNT NOTES" means the 10% Senior Secured Discount Notes
due 2008 in the aggregate principal amount of $___________ issued by the Company
pursuant to the Company Indenture.
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"SERIES 1989 BONDS" means the Issuer's Pollution Control Revenue Refunding
Bonds (Weirton Steel Corporation Project) Series 1989 in the original aggregate
principal amount of $56,300,000.
"STATE" means the State of West Virginia.
"SUBSIDIARY" means any corporation more than 50% of whose Capital Stock
shall at the time be owned, directly or indirectly, by the Company, by one or
more Subsidiaries or by the Company and one or more Subsidiaries.
"TRANSFERRED LOAN BALANCE" has the meaning set forth in Section 4.1 of this
Agreement.
"TREASURY REGULATIONS" means, as the context requires, those regulations
promulgated by the United States Treasury Department under the Internal Revenue
Code of 1986, as amended, or the Internal Revenue Code of 1954, as amended, as
well as any regulations promulgated thereunder.
"TRUST ESTATE" means all Property which may from time to time be subject to
the Lien of the Indenture.
"TRUSTEE" means Chase Manhattan Trust Company, National Association and its
successors as trustee under the Indenture, together with any banking institution
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any temporary or successor trustee at the time
serving as such thereunder. "Principal Corporate Trust office" means the
principal corporate trust office of the Trustee located at Pittsburgh,
Pennsylvania.
"VENDOR FINANCING PROGRAMS" means the sale and leaseback transaction of the
Company's Xxxxxx-Xxxxxxx Steam Generating Plant, including related real property
and certain related energy generating equipment, the sale and leaseback
transaction of the Company's general office building and research and
development building located in Weirton, West Virginia, and other Indebtedness
of the Company or its Subsidiaries in connection with the foregoing and related
transactions with vendors of the Company as described in the Company's
prospectus, dated December [ ], 2001.
"1989 INDENTURE" means the Indenture of Trust dated as of November 1, 1989,
by and between the Issuer and Pittsburgh National Bank, as trustee, relating to
the Series 1989 Bonds.
"1989 LOAN AGREEMENT" means the Loan Agreement dated as of November 1, 1989
by and between the Issuer and the Company relating to the Series 1989 Bonds.
Section 1.2. INCORPORATION OF CERTAIN DEFINITIONS BY REFERENCE. Capitalized
terms used in the Agreement and not otherwise defined herein shall have the
respective meanings provided therefor in the Indenture or, in the case of
Sections 5.5 and 5.6 hereof, the respective meanings provided therefor in the
Company Indenture.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE ISSUER. The
Issuer represents that:
(a) The Issuer is a public corporation and an incorporated municipality
duly organized and existing under the Constitution and laws of the State. Under
the provisions of the Act, the Issuer is authorized to enter into the
transactions contemplated by this Agreement, the Indenture and the Official
Statement. The Issuer has been duly authorized to execute and deliver this
Agreement.
(b) The Series 1989 Bonds were validly issued, are currently outstanding
and are not in default.
(c) The Issuer and the Company heretofore have agreed that the Issuer would
refund its Series 1989 Bonds originally issued to finance (or refinance) the
cost of acquisition, construction and installation of the Project through the
Exchange of the Series 1989 Bonds for the Secured Series 2001 Bonds. The
aggregate principal amount of the Series 1989 Bonds presently outstanding is
$56,300,000. On that basis, the Issuer agrees to refund the Series 1989 Bonds
through the issuance of the Secured Series 2001 Bonds as set forth in the
Indenture.
(d) The Issuer represents that it has not pledged and covenants that it
will not pledge the amounts derived from this Agreement other than to secure the
Secured Series 2001 Bonds.
Section 2.2. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE COMPANY. The
Company represents, covenants and warrants as follows:
(a) The Company is a corporation duly incorporated and in good standing in
the State of Delaware and is duly qualified to transact business and is in good
standing in the State, is not in violation of any provision of its Certificate
of Incorporation or its Bylaws, has the corporate authority to enter into this
Agreement and has duly authorized the execution and delivery of this Agreement
by proper corporate action.
(b) Neither the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby nor the fulfillment of or compliance
with the terms and conditions of this Agreement conflicts, or will conflict,
with or results, or will result, in a breach of the terms, conditions or
provisions of any restriction or any agreement or instrument to which the
Company is now a party or by which the Company is bound, or constitutes, or will
constitute, a default under any of the foregoing, or results, or will result, in
the creation or imposition of any Lien, charge or encumbrance whatsoever upon
any of the Property or assets of the Company under the terms of any instrument
or agreement to which the Company is a party or by which it is bound, except for
the Lien created pursuant to the Deed of Trust.
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(c) There is no litigation or proceeding pending, or to the knowledge of
the Company threatened, against the Company that could have a material adverse
affect on the corporate authority of the Company to execute this Agreement or
the ability of the Company to make the payments required hereunder or to
otherwise comply with the Company's obligations contained herein.
(d) At least ninety percent (90%) of the "proceeds" of each of the Series
1989 Bonds was applied to pay or to refinance qualified costs of "air or water
pollution control facilities" within the meaning of Section 103(b)(4)(F) of the
Internal Revenue Code of 1954, as amended, and such facilities continue to
qualify as "air or water pollution control facilities" within the meaning of
Section 103(b)(4)(F) of the Internal Revenue Code of 1954, as amended.
(e) The "average reasonably expected economic life", within the meaning of
Section 147(b) of the Code, of the facilities financed (or refinanced) with the
proceeds of the Series 1989 Bonds refunded by the issuance of the Secured Series
2001 Bonds is at least [TWENTY-FIVE (25)] years as of the date hereof.
ARTICLE III
ISSUANCE OF THE BONDS
Section 3.1. AGREEMENT TO ISSUE SECURED SERIES 2001 BONDS. In order to
refund the Series 1989 Bonds, the Issuer, concurrently with the execution of
this Agreement, will issue and deliver the Secured Series 2001 Bonds in
accordance with the Indenture.
Section 3.2. INVESTMENT OF MONEYS IN THE BOND FUND. (a) Any moneys held as
a part of the Bond Fund or any other fund established pursuant to the Indenture
or this Agreement shall be invested or reinvested by the Trustee, to the extent
permitted by law, as directed by an Authorized Representative of the Company, in
Authorized Investments.
(b) The Trustee may make any and all such Authorized Investments through
its own bond department or the bond department of any bank or trust company
under common control with the Trustee. All such Authorized Investments shall at
all times be a part of the fund from which the moneys used to acquire such
Authorized Investments shall have come, and all income and profits on such
Authorized Investments shall be credited to, and losses thereon shall be charged
against, such funds. Such Authorized Investments shall be made so as to mature
or be subject to redemption at the option of the holder thereof on or prior to
the date or dates that the Company anticipates that moneys therefrom will be
required.
ARTICLE IV
LOAN PROVISIONS
Section 4.1. Transferred Loan Balance. Upon the completion of the Exchange,
an amount equal to the aggregate [FACE AMOUNT] [PRINCIPAL AMOUNT AT MATURITY] of
the Secured
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Series 2001 Bonds issued in the Exchange, i.e., $_________ shall be deemed to
have been transferred from the 1989 Loan Agreement (the "Transferred Loan
Balance") to this Agreement and the repayment of the Transferred Loan Balance
shall be governed by the terms of this Agreement and the terms of the 1989 Loan
Agreement shall be of no force and effect with respect to the Transferred Loan
Balance.
Section 4.2. Repayment of Transferred Loan Balance; Payment of Other Costs
and Expenses; Purchase of Bonds. (a) The Company shall repay the Transferred
Loan Balance pursuant to this Agreement as follows: on or before each Bond
Payment Date, the Company shall pay to the Trustee at its Principal Corporate
Trust Office on behalf of the Issuer and for deposit in the Bond Fund, an amount
equal to the Debt Service Payment becoming due and payable on such Bond Payment
Date.
(b) The Company shall also pay the reasonable expenses of the Issuer
related to the issuance of the Secured Series 2001 Bonds and the refunding of
the Series 1989 Bonds and otherwise incurred upon the written request of an
Authorized Representative of the Issuer.
(c) The Company shall also pay to the Issuer the reasonable fees and
expenses of the Trustee and any additional Paying Agents under the Indenture,
such reasonable fees and expenses to be paid directly to the Trustee or any
additional Paying Agents for the Trustee's or any such Paying Agents' own
account as and when such fees and expenses become due and payable, and any
reasonable expenses in connection with any redemption of the Bonds.
(d) In the event the Company fails to make any of the payments required in
Section 4.2(a), the installment so in default shall continue as an obligation of
the Company until the amount in default shall have been fully paid, and, to the
extent permitted by law, the Company agrees to pay the same with interest
thereon from the due date thereof to the date of payment.
(e) The Company (i) shall on or before the 30th day following a Designated
Event, if any (as defined in the Indenture) request the Trustee to give the
notice specified in Section 3.04(b) of the Indenture and (ii) shall purchase all
Secured Series 2001 Bonds tendered to it (or to an agent designated by the
Company for such purpose) pursuant to Section 3.04 of the Indenture for a price
equal to 101% of (a) the Accreted Value (as such term is defined in the
Indenture) thereof, if such Designated Event occurs prior to January 1, 2004, or
(b) the principal amount at maturity thereof, plus accrued interest thereon to
the date of purchase, if any, if the Designated Event occurs on or after January
1, 2004, and otherwise in accordance with the provisions of Section 3.04 of the
Indenture. No Secured Series 2001 Bonds purchased by the Company pursuant to
this subsection (e) may be remarketed by it (or by an agent designated by the
Company for such purpose) unless on or prior to the date of the remarketing the
Trustee shall have received (x) an opinion of Bond Counsel that the remarketing
will not adversely affect the exclusion from gross income of the interest
payable on the Bonds for Federal income tax purposes or the exemption from
taxation by the State (except inheritance, estate and transfer taxes) of the
Bonds and the income therefrom and (y) an official statement of the Issuer with
respect to the Secured Series 2001 Bonds that are being remarketed.
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(f) Section 4.06 of the Indenture provides that moneys or Government
Obligations deposited with and held by the Trustee not applied to the payment of
Secured Series 2001 Bonds or interest thereon within two (2) years after the
date such Bonds shall have become due shall be repaid to the Company. In the
event that any Holder of a Secured Series 2001 Bond presents such Bond to the
Company within 5 years after the Company has received such money from the
Trustee, as described above, the Company hereby agrees to pay to such Holder the
amount payable on the Bond in accordance with the applicable ,provisions of the
Indenture.
Section 4.3. OBLIGATIONS OF COMPANY HEREUNDER UNCONDITIONAL. The
obligations of the Company to make the payments required in Section 4.2(a) shall
be absolute and unconditional and shall not be subject to any defense or any
right of setoff, counterclaim or recoupment arising out of any breach by the
Issuer or the Trustee of any obligation to the Company, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Company by the Issuer or the Trustee. Until such time as the principal of,
premium, if any, and interest on the Secured Series 2001 Bonds shall have been
fully paid or provision for the payment thereof shall have been made in
accordance with the Indenture, the Company (i) will not suspend or discontinue
any payments provided for in Section 4.2(a) hereof and (ii) except as provided
in Article VIII hereof, will not terminate this Agreement for any reason.
Section 4.4. ASSIGNMENT TO THE TRUSTEE. The Company hereby acknowledges
that pursuant to the Indenture, the Issuer shall assign to the Trustee in order
to secure payment of the Secured Series 2001 Bonds all of the Issuer's right,
title and interest in (a) this Agreement (except the Issuer's rights under
Sections 4.2(b), 6.2 and 7.4 hereof), and all amounts payable hereunder (except
payments pursuant to Sections 4.2(b), 6.2 and 7.4 hereof) and (b) the Deed of
Trust. The Company expressly consents to such assignment.
ARTICLE V
SPECIAL COVENANTS
Section 5.1. FURTHER ASSURANCE AND CORRECTIVE INSTRUMENTS. The Issuer and
the Company agree that each will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements
hereto or amendments hereof and such further instruments as may reasonably be
required to correct defects or omissions herein or to carry out the expressed
intention of this Agreement.
Section 5.2. AUTHORIZED REPRESENTATIVES. Whenever under the provisions of
this Agreement the approval of the Issuer or the Company is required or the
Issuer or the Company is required to take some action at the request of the
other, such approval or such request shall be given for the Issuer by an
Authorized Representative of the Issuer and for the Company by an Authorized
Representative of the Company. Each party hereto is authorized to act on any
such approval or request.
Section 5.3. CERTAIN TAX REPRESENTATIONS AND COVENANTS OF THE ISSUER AND
THE COMPANY. (a) The Issuer and the Company each represents and warrants that it
has not taken or
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failed to take any action that could have caused interest on the Prior Bonds to
be includable in the gross income of the owners thereof for Federal or state
income tax purposes.
(b) The Issuer and the Company each represents, and warrants that it has
taken all action and has done all things, and covenants that it will take all
action and will do all things, required to assure that (i) interest payable on
the Secured Series 2001 Bonds is and will continue to be not includable in the
gross income of the owners thereof for Federal income tax purposes and (ii) the
Secured Series 2001 Bonds and the income therefrom are and will continue to be
exempt from taxation by the State (except inheritance, estate and transfer
taxes).
(c) Notwithstanding any other provision of this Agreement, so long as any
Secured Series 2001 Bonds shall be Outstanding, (i) neither the Issuer nor the
Company shall use, or permit the use of, any moneys within their respective
control (including, without limitation, the proceeds of any insurance or any
Condemnation award with respect to the Project) which, if such use had been
reasonably expected on the date of issue of such Bonds, would cause the Bonds to
be "arbitrage bonds" within the meaning of such quoted term in Section 148 of
the Code, and (ii) the Company will make any necessary rebate payments to the
United States in order to comply with Section 148(f) of the Code.
Section 5.4. FINANCIAL REPORTS. So long as any of the Secured Series 2001
Bonds are outstanding, the Company shall furnish or cause to be furnished to the
Trustee and to any Bondholder who shall have requested the same in writing
copies of all such annual or periodic statements or reports as the Company shall
send to its stockholders.
Section 5.5. LIMITATIONS ON LIENS. The Company will not, and will not
permit any Subsidiary to, issue, assume or guarantee any Indebtedness secured by
a Lien (other than a Permitted Lien) of or upon any Property of the Company or
any Subsidiary or any shares of stock or debt of any Subsidiary which owns
Property, whether such Property is owned at the date of the Company Indenture or
thereafter acquired, without making effective provision whereby the Secured
Series 2001 Bonds (together with, if the Company shall so determine, any other
debt of the Company ranking equally with the Secured Series 2001 Bonds and then
existing or thereafter created) shall be secured by such Lien equally and
ratably with such Indebtedness, so long as such Indebtedness shall be so
secured; provided that the foregoing prohibition shall not apply to Liens with
respect to transactions regarding the No. 9 tin tandem mill.
Section 5.6. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Subsidiary to, enter into any
sale and leaseback transaction with respect to any Property (whether now owned
or hereafter acquired) unless the net proceeds of the sale or transfer of the
property to be leased are at least equal to the fair market value (as determined
by the board of directors of the Company) of such Property and unless the
Company or such Subsidiary would be entitled under Sections 3.9 and 3.13 of the
Company Indenture, to issue, assume or guarantee debt secured by a mortgage on
such Property in an amount at least equal to the Attributable Debt in respect of
such sale and leaseback transaction; provided, however, that the foregoing
prohibition does not apply to leases between the Company and a Subsidiary or
between Subsidiaries or to sales and leasebacks with
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respect to the No. 9 tin tandem mill or sale and leaseback transactions with
respect to the Company's Vendor Financing Programs.
Section 5.7. WHEN COMPANY MAY MERGE, ETC. (a) The Company shall not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to, any Person unless:
(1) the Person is a corporation organized under the laws of the United
States of America, any State thereof or the District of Columbia;
(2) the Person assumes all the obligations of the Company hereunder
and under the Deed of Trust;
(3) after giving effect to the transaction no Event of Default exists
or will exist hereunder; and
(4) the Trustee shall have received an unqualified opinion of Bond
Counsel, satisfactory to the Trustee, that such consolidation, merger,
conveyances transfer or lease will not adversely affect (i) the exclusion
from gross income of the interest payable on the Secured Series 2001 Bonds
for Federal income tax purposes or (ii) the exemption from taxation by the
State (except inheritance, estate and transfer taxes) of the Secured Series
2001 Bonds and the income therefrom.
(b) The surviving, transferee or lessee corporation shall be the successor
Company, but the predecessor Company in the case of a transfer or lease shall
not be released from the obligation to pay the principal of, premium, if any,
and interest on the Secured Series 2001 Bonds.
Section 5.8. Impairment of Security Interest. The Company shall not and
shall not permit any of its Subsidiaries to take, or knowingly or negligently
omit to take any action, which action or omission might or would have the result
of materially impairing the security interest in favor of the Trustee on behalf
of the Holders with respect to the Collateral and the Company shall not grant to
any person (other than the Trustee on behalf of the Holders and the trustee on
behalf of the holders of the Senior Secured Discount Notes) any interest
whatsoever in the Collateral other than as permitted by the Deed of Trust.
ARTICLE VI
ASSIGNMENT, INDEMNIFICATION AND REDEMPTION
Section 6.1. ASSIGNMENT OF AGREEMENT. This Agreement may be assigned by the
Company without the necessity of obtaining the consent of either the Issuer or
the Trustee, subject, however, to each of the following conditions:
(a) No assignment shall relieve the Company from primary liability for any
obligation hereunder and, in the event of any such assignment, the Company shall
continue to
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remain primarily liable for payment of the amounts specified herein, including
without limitation in Section 4.2 hereof, and for performance and observance of
the other agreements herein required to be performed and observed by the Company
to the same extent as though no assignment had been made;
(b) The assignee shall assume the obligations of the Company hereunder to
the extent of the interest assigned;
(c) The Company shall, within thirty (30) days after the delivery thereof,
furnish or cause to be furnished to the Issuer and the Trustee a true and
complete copy of any assignment; and
(d) The Issuer shall have received an unqualified opinion of Bond Counsel,
satisfactory to the Trustee, that the assignment will not adversely affect (i)
the exclusion of the interest payable on the Secured Series 2001 Bonds from the
gross income of the owners thereof for Federal income tax purposes, or (ii) the
exemption from taxation by the State (except inheritance, estate and transfer
taxes) of the Secured Series 2001 Bonds and the income therefrom.
Section 6.2. RELEASE AND INDEMNIFICATION. (a) The Company shall and hereby
agrees to indemnify and save the Issuer and the Trustee harmless against and
from all claims by or on behalf of any Person arising from any breach or default
on the part of the Company in the performance of any of its obligations under
this Agreement. In connection with any action or proceeding arising out of any
such claim, upon notice from the Issuer or the Trustee, the Company shall pay
their defense costs or the defense cost of either of them.
(b) Notwithstanding the fact that it is the intention of the parties hereto
that the Issuer shall not incur any pecuniary liability by reason of the terms
of this Agreement or the undertakings required of the Issuer hereunder, the
issuance of the Secured Series 2001 Bonds, the execution of the Indenture or the
performance of any act requested of the Issuer by the Company, including all
claims, liabilities or losses arising in connection with the violation of any
statutes or regulations pertaining to the foregoing; nevertheless, if the Issuer
should incur any such pecuniary liability, then in such event the Company shall
indemnify and hold the Issuer harmless against all claims by or on behalf of any
Person arising out of the same and all costs and expenses incurred in connection
with any such claim or in connection with any action or proceeding brought
thereon, and upon notice from the Issuer, the Company shall pay the reasonable
defense costs of the Issuer in any such action or proceeding.
(c) For purposes of this Section 6.2, the term "Issuer" shall mean the
Issuer and any of its members, officers, employees, agents or representatives.
Section 6.3. REDEMPTION OF BONDS. The Company shall have and is hereby
granted the option to prepay from time to time the amounts payable under this
Agreement in sums sufficient to redeem or to pay or cause to be paid all or part
of the Secured Series 2001 Bonds in accordance with the provisions of the
Indenture. Upon the agreement of the Company to deposit moneys in the Bond Fund
in an amount sufficient to redeem Bonds subject to redemption, the Issuer, at
the request of the Company, shall forthwith take all steps (other than
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the payment of the money required for such redemption) necessary under the
applicable redemption provisions of the Indenture to effect redemption of all or
part of the then Outstanding Bonds, as may be specified by the Company, on the
date established for such redemption.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. EVENTS OF DEFAULT DEFINED. (a) The following shall be "Events
of Default" under this Agreement and the terms "Event of Default" and "Default"
shall mean, whenever they are used in this Agreement, any one or more of the
following events:
(i) failure by the Company to pay the amounts required to be paid
under Section 4.2(a) or Section 4.2(e) hereof at the times specified
therein;
(ii) failure by the Company to comply with any of its other agreements
herein and such default continues for sixty (60) days after notice from the
Issuer, the Trustee or the Holders of at least twenty-five percent (25%) in
aggregate principal amount of the Bonds;
(iii) an event of default, as defined in any indenture or instrument
evidencing or under which the Company or any Subsidiary has at the date of
this Agreement or shall hereafter have outstanding at least $25,000,000
aggregate principal amount of indebtedness for borrowed money, shall happen
and be continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable, and such acceleration
shall not be rescinded or annulled within ten days after notice thereof
shall have been given to the Company by the Trustee (if such event be known
to it), or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Bonds at the time outstanding; provided
that if such event of default under such indenture or instrument shall be
remedied or cured by the Company or such Subsidiary or waived by the
holders of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or any of
the Bondholders;
(iv) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case; or
(B) consents to the entry of an order for relief against it in an
involuntary case; or
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or
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(D) makes a general assignment for the benefit of its creditors;
or
(v) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case; or
(B) appoints a Custodian of the Company for all or substantially
all of its property; or
(C) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 60 days;
(vi) an event of default under the Deed of Trust shall have occurred
and be continuing beyond any applicable grace period; or
(vii) the repudiation by the Company of any of its obligations under
the Deed of Trust or the unenforceability of the Deed of Trust against the
Company.
(d) The term "Bankruptcy Law" means title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 7.2. REMEDIES ON DEFAULT. Whenever any Event of Default referred to
in Section 7.1 hereof shall have occurred and be continuing, the Trustee or the
Issuer with the written consent of the Trustee may take one or any combination
of the following remedial steps:
(a) By written notice to the Company, declare an amount equal to all
amounts then due and payable on the Secured Series 2001 Bonds, whether by
acceleration of maturity (as provided in the Indenture) or otherwise, to be
immediately due and payable, whereupon the same shall become immediately due and
payable; and
(b) Take whatever action at law or in equity that may appear necessary or
desirable to collect the amounts then due and thereafter to become due, or to
enforce performance and observance of any covenant, agreement or undertaking of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 7.2 shall
be deposited in the Bond Fund and applied in accordance with the provisions of
the Indenture.
Section 7.3. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Issuer is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or the Deed of Trust
or now or hereafter existing at law or in equity. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as may be deemed
expedient. In order to
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entitle the Issuer to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than such notice as may be
required in this Article. The rights and remedies given the Issuer hereunder
(other than the right to exercise remedies to collect amounts payable under
Sections 4.2(b), 6.2 and 7.4 hereof) and under the Deed of Trust have been
assigned by the Issuer to the Trustee pursuant to the Indenture, and the Trustee
and the Bondholders, subject to the provisions of the Indenture, shall be
entitled to the benefit of all covenants and agreements herein and therein
contained.
Section 7.4. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. In the event
the Company should default under any of the provisions of this Agreement and the
Issuer should employ attorneys or incur other expenses for the collection of
payments required hereunder or the enforcement of performance or observance of
any obligation or agreement on the part of the Company herein contained, the
Company agrees that it will on demand therefor pay to the Issuer the reasonable
fee of such attorneys and such other expenses so incurred by the Issuer.
Section 7.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any
agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VIII
PREPAYMENT OF LOAN
Section 8.1. OPTIONS TO TERMINATE AT ANY TIME. (a) The Company may
terminate this Agreement and prepay its obligations under Section 4.2(a) hereof
at any time prior to the full payment of the Secured Series 2001 Bonds (i) by
paying to the Trustee (1) an amount which, when added to the amount on deposit
in the Bond Fund, will be sufficient to redeem all the Outstanding Bonds in
accordance with Section 3.01(b) of the Indenture and (2) the expenses of
redemption and the Trustee's and any additional Paying Agents' fees and expenses
and (ii) by giving the Issuer notice in writing of such termination, upon the
occurrence of one or more of the following events:
(i) the Project shall have been damaged or destroyed to such extent
that (1) in the reasonable opinion of the Company expressed in a
certificate signed by an Authorized Representative of the Company, the
Project cannot be reasonably restored within a period of 6 months from the
date of such damage or destruction, or (2) the Company is thereby prevented
or, in the reasonable opinion of the Company expressed in a certificate
signed by an Authorized Representative of the Company, is likely to be
prevented from carrying on its normal operation of the Project for a period
of 6 months from the date of such damage or destruction; or
(ii) title to, or the temporary use of all or substantially all, of
the Project shall have been condemned by a competent authority which
condemnation results or, in the reasonable opinion of the Company expressed
in a certificate
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signed by an Authorized Representative of the Company, is likely to result
in the Company being thereby prevented from carrying on its normal
operation of the Project for a period of 6 months; or
(iii) as a result of changes in the Constitution of the United States
of America or of the State or of legislative or executive action of any
political subdivision thereof or of the United States of America or by
final decree or judgment of any court, after the contest thereof by the
Company, (1) this Agreement becomes void or unenforceable or (2) in the
reasonable opinion of the Company expressed in a certificate signed by an
Authorized Representative of the Company, (A) this Agreement becomes
impossible of performance in accordance with the intent and purposes of,
the parties as expressed herein or (B) unreasonable burdens or excessive
liabilities are imposed upon the Company by reason of the operation of the
Project; or
(iv) a change shall have occurred in the economic availability of raw
materials, manufactured products, energy sources, operating supplies or
facilities necessary for the operation of the Project for the purposes for
which the Project was originally constructed, or such technological or
other changes shall have occurred that, in the reasonable opinion of the
Company expressed in a certificate signed by an Authorized Representative
of the Company, the Project is rendered uneconomic, impractical or
unfeasible for the purposes for which it was originally constructed.
(b) The Company also may terminate this Agreement and prepay its
obligations under Section 4.2(a) hereof at any time prior to full payment of the
Secured Series 2001 Bonds (i) by paying to the Trustee (1) an amount which, when
added to the amount on deposit in the Bond Fund, will be sufficient to pay,
retire and redeem all of the Outstanding Bonds in accordance with the provisions
of Section 6.02 of the Indenture and (2) the expenses of redemption and the
Trustee's and any additional Paying Agents' fees and expenses, and, in case of
redemption, by making arrangements satisfactory to the Trustee for the giving of
the required notice of redemption and (ii) by giving the Issuer notice in
writing of such termination.
Section 8.2. RELATIVE POSITION OF OPTIONS AND THE INDENTURE. The options
granted to the Company in this Article shall be and remain prior and superior to
the Indenture and may be exercised whether or not the Company is in Default
hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.1. TERM OF AGREEMENT. This Agreement shall remain in full force
and effect from the date hereof until such time as all of the Bonds and the fees
and expenses of the Issuer, the Trustee and any additional Paying Agents shall
have been fully paid or provision has been made for such payments in accordance
with the Indenture and satisfactory to the Issuer, the
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Trustee and any additional Paying Agents. The obligations of the Company
pursuant to Sections 4.2(f), 5.3(c)(iii) and 6.2 shall survive termination
of this Agreement.
Section 9.2. NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered mail, postage prepaid, addressed as follows: IF TO THE
ISSUER, City of Xxxxxxx, Xxxx Xxxxxxxx 00000, Attention: Mayor; IF TO THE
COMPANY, Weirton Steel Corporation, 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxx
Xxxxxxxx 00000, Attention: President; and IF TO THE TRUSTEE, Chase Manhattan
Trust Company, National Association, One Oxford Centre, 301 Grant Street, Suite
1100, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Institutional Trust Services. A
duplicate copy of each notice, certificate or other communication given
hereunder by the Issuer or the Company shall also be given to the Trustee. The
Issuer, the Company and the Trustee may, by written notice given hereunder,
designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 9.3. BINDING EFFECT. This Agreement shall inure to the benefit of
and shall be binding upon the Issuer, the Company, the Trustee, the Bondholders
and their respective successors and assigns.
Section 9.4. SEVERABILITY. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 9.5. AMOUNTS REMAINING IN BOND FUND. It is agreed by the parties
hereto that any amounts remaining in the Bond Fund upon expiration or earlier
termination of this Agreement, as provided in this Agreement, after payment in
full of the Secured Series 2001 Bonds (or provision for payment thereof having
been made in accordance with Article VI of the Indenture) and the fees and
expenses of the Trustee and any additional Paying Agents in accordance with the
Indenture, shall belong to and be paid to the Company by the Trustee as the
return of an overpayment of the amounts payable hereunder.
Section 9.6. AMENDMENTS, CHANGES AND MODIFICATIONS. Subsequent to the
issuance of Secured Series 2001 Bonds and prior to their payment in full (or
provision for the payment thereof having been made in accordance with Article VI
of the Indenture), and except as otherwise herein expressly provided, this
Agreement may not be effectively amended, changed, modified, altered or
terminated without the written consent of the Trustee, in accordance with the
provisions of the Indenture. Notwithstanding anything contained herein or in the
Indenture to the contrary, subsequent to the issuance of Secured Series 2001
Bonds and prior to their payment in full, no amendment, change or modification
of this Agreement shall become effective unless and until the Trustee shall have
received an unqualified opinion of Bond Counsel, satisfactory to the Trustee,
that such amendment, change or modification will not adversely affect the
exclusion from gross income of the interest payable on the Secured Series 2001
Bonds for Federal income tax purposes or the exemption from taxation by the
State (except inheritance, estate and transfer taxes) of the Bonds and the
income thereon.
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Section 9.7. EXECUTION IN COUNTERPARTS. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 9.8. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 9.9. CAPTIONS. The captions and headings in this Agreement are for
convenience of reference only and in no way define, limit or describe the scope
or intent of any provisions or Sections of this Agreement.
IN WITNESS WHEREOF, the Issuer has caused this Agreement to be executed in
its corporate name and with its official seal hereunto affixed and attested by
its duly authorized officials, and the Company has caused this Agreement to be
executed in its corporate name with its corporate seal hereunto affixed and
attested by its duly authorized officers, all of the above occurred as of the
date first above written.
[SEAL] CITY OF WEIRTON, WEST VIRGINIA
Attest: By _____________________________________
Mayor
By ____________________________________
City Clerk
[SEAL] WEIRTON STEEL CORPORATION
Attest: By _____________________________________
Vice President, Chief Financial
Officer and Treasurer
By ____________________________________
Secretary
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