EXHIBIT 10.1
LOAN AGREEMENT
between
LORAIN COUNTY PORT AUTHORITY
and
UNITED STATES STEEL CORPORATION
$70,000,000
Lorain County Port Authority (State of Ohio)
Recovery Zone Facility Revenue Bonds
(United States Steel Corporation Project)
Series 2010
Dated as of December 1, 2010
ARTICLE I
DEFINITIONS
Section 1.01. Use of Defined Terms 1
Section 1.02. Definitions 1
Section 1.03. Interpretation 4
Section 1.04. Captions and Headings 4
ARTICLE II
REPRESENTATIONS
Section 2.01. Representations and Covenants of the Issuer 4
Section 2.02. Representations and Covenants of the Company 5
ARTICLE III
COMPLETION OF PROJECT FACILITIES; ISSUANCE OF THE BONDS
Section 3.01. Completion of Project Facilities 6
Section 3.02. Issuance of the Bonds; Application of Proceeds 6
Section 3.03. Use of Proceeds 7
Section 3.04. Investment of Fund Moneys 7
Section 3.05. Issuer's Fees 7
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN INCLUDING ADDITIONAL
PAYMENTS
Section 4.01. Loan of Proceeds; Installment Payments 8
Section 4.02. Additional Payments 8
Section 4.03.Deposit of Moneys in Bond Fund; Moneys for Purchase
and Redemption 9
Section 4.04. Obligations Unconditional 9
Section 4.05. Assignment by Company 9
Section 4.06. Assignment by Issuer 9
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.01. Lease, Sale or Grant of Use by Company 10
Section 5.02. Indemnification of Issuer and Trustee 11
Section 0.00.Xxxxxxx Not to Adversely Affect Exclusion From Gross
Income of Interest on the Bonds 11
Section 0.00.Xxxxxxx to Maintain its Existence; Mergers or
Consolidations 12
Section 5.05. Reports and Audits 12
Section 5.06. Insurance 13
ARTICLE VI
OPTIONS; PREPAYMENT OF LOAN
Section 6.01. Options to Terminate 13
Section 6.02.Option to Prepay Upon Extraordinary Optional
Redemption Under the Indenture 13
Section 6.03. Actions by Issuer 13
Section 6.04. Release on Exercise of Option to Prepay Loan 13
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default 14
Section 7.02. Remedies on Default 14
Section 7.03. No Remedy Exclusive 15
Section 7.04. Agreement to Pay Fees and Expenses 15
Section 7.05. No Waiver 15
Section 7.06. Notice of Default 16
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Term of Agreement 16
Section 8.02. Amounts Remaining in Funds 16
Section 8.03. Notices 16
Section 8.04.Extent of Covenants of Issuer; No Personal Liability 16
Section 8.05. Binding Effect 17
Section 8.06. Amendments and Supplements 17
Section 8.07. Execution Counterparts 17
Section 8.08. Severability 17
Section 8.09. Governing Law 17
Section 8.10. Further Assurances and Corrective Instruments 17
Section 8.11. Issuer and Company Representatives 17
Section 8.12.Immunity of Incorporators, Stockholders, Officers
and Directors 17
Section 8.13. Section Headings 18
EXHIBIT A PROJECT FACILITIES
EXHIBIT B FORM OF DISBURSEMENT REQUEST
EXHIBIT C FORM OF COMPLETION CERTIFICATE
LOAN AGREEMENT
THIS LOAN AGREEMENT made and entered into as of December 1, 2010, by and
between the LORAIN COUNTY PORT AUTHORITY (the "Issuer"), a port authority and
political subdivision duly organized and validly existing under the laws of the
State of Ohio (the "State"), and UNITED STATES STEEL CORPORATION, a corporation
duly organized and existing under and pursuant to the laws of the State of
Delaware, and duly qualified to own property and transact business in the State
(the "Company"), under the following circumstances summarized in the following
recitals (capitalized terms not defined in the recitals being used therein as
defined in Article I):
WHEREAS, pursuant to Section 13 of Article VIII of the Ohio Constitution
and the Act, the Issuer has determined to issue, sell and deliver the Bonds and
to loan the proceeds derived from the sale thereof to the Company to assist in
the financing of the Project to be undertaken by the Company; and
WHEREAS, the Issuer and the Company each has full right and lawful
authority to enter into this Agreement and to do or cause to be done all the
acts and things herein or in the Indenture (as hereinafter defined) provided or
required to be done by it;
NOW, THEREFORE, for and in consideration of the premises, the respective
representations and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto, recognizing that under the Act this Agreement
shall not in any way obligate the State or any agency or political subdivision
thereof, including, without limitation, the Issuer, to raise any money by
taxation or use other public moneys for any purpose in relation to the Project
or Project Facilities and that neither the State nor any agency or political
subdivision thereof, including, without limitation, the Issuer, shall pay or
promise to pay any debt or meet any financial obligation to any Person at any
time in relation to the Project or the Project Facilities, except from moneys
received or to be received under the provisions of this Agreement or derived
from the exercise of the rights of the Issuer hereunder, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Use of Defined Terms. In addition to the words and terms
defined elsewhere in this Agreement, or by reference to another document, the
words and terms set forth in Section 1.02 shall have the meanings set forth
therein unless the content or use clearly indicates another meaning or intent.
In addition, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Indenture.
Section 1.02. Definitions. The following terms shall have the following
meanings:
"Act" means Sections 4582.21 through 4582.71, inclusive, of the Ohio
Revised Code, as enacted and amended from time to time pursuant to Section 13
of Article VIII of the Ohio Constitution.
"Additional Payments" means payments due hereunder in addition to the
Installment Payments.
"Agreement" means this Loan Agreement as amended or supplemented from time
to time.
"Authorized Company Representative" means any person at the time designated
to act on behalf of the Company by written certificate furnished to the Issuer
and the Trustee, containing the specimen signature of that person and signed on
behalf of the Company by its Secretary or any Assistant Secretary.
"Bonds" means the Issuer's $70,000,000 Recovery Zone Facility Revenue Bonds
(United States Steel Corporation Project), Series 2010, dated December 1, 2010.
"Code" means the Internal Revenue Code of 1986, as amended.
"Completion Certificate" is the certificate in substantially the form
attached hereto as Exhibit C.
"County" means the County of Lorain, Ohio.
"Designated Officer" means the Chair, Vice Chair, Executive Director or any
other officer designated to act by board action of the Issuer.
"Event of Default" means any of the events described as an Event of
Default in Section 7.01.
"Holder" or "Holder of a Bond" means the Person in whose name a Bond is
registered on the Register.
"Indenture" means the Trust Indenture, dated as of December 1, 2010, by and
between the Issuer and the Trustee.
"Issuer" has the meaning set forth in the first paragraph of this
Agreement.
"Loan" means the loan of Bond proceeds from the Issuer to the Company as
provided in Section 4.01.
"Notice Address" means:
(a) As to the Issuer:
Lorain County Port Authority
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Executive Director
Facsimile No.: (000) 000-0000
(b) As to the Company:
United States Steel Corporation
Room 1311
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Assistant Treasurer-Finance and Risk Management
Facsimile No.: (000) 000-0000
(c) As to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
000 Xxxxxxx Xxxx Xxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
or such additional or different address, notice of which is given under
Section 8.03.
"Person" or words importing persons mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Project" means the costs of acquiring, constructing, equipping and
installing a heat, quench and temper line and finishing steel tubing facility
and paying costs of issuance of the Bonds.
"Project Facilities" means, generally, the heat, quench and temper line
and finishing steel tubing facility financed from the proceeds of the Bonds,
as such Project Facilities are listed and described on Exhibit A attached
hereto.
"Project Fund" means the Project Fund created under the Indenture.
"Register" means the books kept and maintained for the registration and
transfer of Bonds pursuant to Section 3.06 of the Indenture.
"Trustee" means The Bank of New York Mellon Trust Company, N.A.
"Unassigned Issuer's Rights" means all of the rights of the Issuer to
receive Additional Payments under Section 4.02 hereof, to be held harmless and
indemnified under Section 5.02 hereof, to be reimbursed for fees and expenses
under Section 7.04 hereof, to receive notices under Section 8.03 hereof, and to
give or withhold consent to amendments, changes, modifications and alterations
of the Agreement under Section 8.06 hereof and its right to enforce such rights.
All other terms used in this Agreement that are defined in the Indenture
have the same meanings assigned them in the Indenture unless the context clearly
requires otherwise.
Section 1.03. Interpretation. Unless the context clearly indicates
otherwise, the capitalized terms defined in this Article I and in the Indenture,
for all purposes of this Agreement and all agreements supplemental hereto, have
the meanings hereby ascribed to them. Such terms, together with all other
provisions of this Agreement, shall be read and understood in a manner
consistent with the provisions of the Act. Words or phrases importing the
masculine gender shall be read and understood to include the feminine and neuter
genders and those importing number shall include singular or plural, both as
appropriate to the context.
Any reference herein to the Issuer, to its Board of Directors or to any
Designated Officer includes entities or officials succeeding to their respective
functions, duties or responsibilities pursuant to or by operation of law or
lawfully performing their functions.
Any reference to a section, provision or chapter of the laws of the State
or to any statute of the United States of America includes that section,
provision or chapter or statute as amended, modified, revised, supplemented or
superseded from time to time; provided, that no such amendment, modification or
similar change shall apply solely by reason of this provision, if it constitutes
in any way an impairment of the rights or obligations of the Issuer, the Holders
of the Bonds, the Trustee or the Company under this Agreement.
Section 1.04. Captions and Headings. The captions and headings in this
Agreement are solely for convenience of reference and in no way define, limit or
describe the scope or intent of any articles, sections, subsections, paragraphs,
subparagraphs or clauses hereof.
ARTICLE II
REPRESENTATIONS
SECTION 2.01. Representations and Covenants of the Issuer. The Issuer
represents and covenants that (a) it is duly organized and validly existing
under the Constitution and laws of the State, including the Act; (b) it has duly
accomplished all conditions necessary to be accomplished by it prior to the
issuance and delivery of the Bonds and the execution and delivery of this
Agreement, the Indenture and the Tax Regulatory Agreement; (c) it is not in
violation of or in conflict with any provisions of the laws of the State which
would impair its ability to carry out its obligations contained in this
Agreement, the Indenture or the Tax Regulatory Agreement; (d) it is empowered to
enter into the transactions contemplated by this Agreement, the Indenture and
the Tax Regulatory Agreement; (e) it has duly authorized the execution, delivery
and performance of this Agreement, the Indenture and the Tax Regulatory
Agreement; (f) to the best of its knowledge and belief, based upon the
information submitted by the Company, and other representations made,
information presented and testimony given by the Company, the Bonds will further
the public purposes of the Act and of the Issuer; (g) it will do all things in
its power in order to maintain its existence or assure the assumption of its
obligations under this Agreement, the Indenture and the Tax Regulatory Agreement
by any successor public body; and (h) it will execute and deliver to the Trustee
and the Company each Disbursement Request (in the form attached hereto as
Exhibit B) which is properly presented to the Issuer for approval pursuant to
Section 3.03 hereof.
Section 2.02. Representations and Covenants of the Company. The Company
represents and covenants that:
(a) It is a corporation duly organized and existing under and pursuant to the
laws of the State of Delaware. The Company is qualified to do business in the
State.
(b) It has full power and authority to execute, deliver and perform its
obligations under this Agreement and the Tax Regulatory Agreement and to enter
into and carry out the transactions contemplated by those documents; such
execution, delivery and performance does not, and will not, violate any
provision of law applicable to the Company or the Company's articles of
incorporation, code of regulations, bylaws or other corporate charter or similar
instrument each as may be amended, and does not, and will not, conflict with or
result in a default under any agreement or instrument to which the Company is a
party or by which it is bound; this Agreement and the Tax Regulatory Agreement
have, by proper action, been duly authorized, executed and delivered by the
Company and all steps necessary have been taken to constitute this Agreement and
the Tax Regulatory Agreement as valid and binding obligations of the Company.
(c) The provision of financial assistance to be made available to it under this
Agreement and the commitments therefor made by the Issuer have assisted the
Company in undertaking the transactions contemplated by this Agreement and to
thereby locate or continue to locate within the geographical limits of the
jurisdiction of the Issuer that business of the Company to be conducted by use
of the Project and the Project Facilities and such business will create and
preserve jobs and employment opportunities within the County.
(d) The Project Facilities constitute "recovery zone property" for purposes of
Section 1400U-3 of the Code, and will be located entirely within the "recovery
zone" designated by the Issuer and the County pursuant to Section 1400U-1 of the
Code.
(e) At the time of issuance of the Bonds to finance the Project and at all
times subsequent thereto the Company has complied and will comply with all
applicable requirements of the Code and all applicable regulations, rulings and
successor laws necessary to ensure that the interest on the Bonds is and will
remain exempt from federal income tax.
(f) All of the proceeds of the Bonds will be used exclusively for the
governmental purposes of the Bonds in accordance with the spending schedules for
gross proceeds of the Bonds set forth in Section 3.02 of the Tax Regulatory
Agreement.
(g) Each and all of the representations and warranties of the Company contained
in the Tax Regulatory Agreement, as executed and delivered simultaneously with
this Agreement, are true and correct.
(h) The Company will comply with the applicable requirements of Rule 15c2-12 as
promulgated by the Securities and Exchange Commission and recognizes that the
Issuer is not an "obligated person" within the meaning of said Rule.
ARTICLE III
COMPLETION OF PROJECT FACILITIES;
ISSUANCE OF THE BONDS
SECTION 3.01. Completion of Project Facilities/Prevailing Wage.
(a) The Company represents that the Project Facilities will be completed and
that the proceeds of the Bonds, including any investment thereof, will be
expended in accordance with the provisions of all bond authorization, security
and tax regulatory agreements executed in respect of the Bonds and in respect of
the installation, operation or use of the Project Facilities. Upon completion
of the Project Facilities, the Company shall deliver to the Issuer the
Completion Certificate. Upon receipt thereof, the Issuer shall indicate its
approval thereon and deliver the Completion Certificate to the Trustee.
(b) All wages paid to laborers and mechanics employed on the Project must be
paid at the prevailing rates of wages of laborers and mechanics for the class of
work called for by the Project. Wages must be determined in accordance with the
requirements of Chapter 4115, Revised Code. If the Company undertakes, however,
as part of the Project, construction to be performed by its regular bargaining
unit employees who are covered under a collective bargaining agreement which was
in existence before the date of this Agreement, then the rate of pay provided
under the applicable collective bargaining agreement may be paid to those
employees.
(c) To the extent required by Section 4115.032, Revised Code, the Company will
comply, and will require compliance by all contractors or subcontractors working
on the Project, with all applicable requirements of Sections 4115.03 through
4115.16, Revised Code, including without limitation, obtaining or causing to be
obtained, if required, from the Ohio Bureau of Employment Services its
determination of the prevailing rates of wages to be paid for the class of work
called for by the Project, and ensuring that all contractors and subcontractors
receive notification of changes in prevailing wage rates as required under
Section 4115.05, Revised Code. Concurrently with issuance of the Bonds and at
such times as the Issuer requests, the Borrower will provide the Issuer with
evidence, satisfactory to the Issuer, that there has been compliance with the
foregoing agreements.
Section 3.02. Issuance of the Bonds; Application of Proceeds. To provide
funds to make the Loan for the purpose of financing the Project, upon
satisfaction of the conditions set forth herein and in the Bond Legislation, the
Issuer will issue, sell and deliver the Bonds. The Bonds will be issued in
accordance with and pursuant to the Indenture in the aggregate principal
amount, will bear interest at the rate or rates, will mature and will be subject
to redemption as set forth therein. The Company hereby approves the terms and
conditions of the Indenture, and the Bonds, and the terms and conditions under
which the Bonds will be issued, sold and delivered.
Section 3.03. Use of Proceeds. The proceeds from the sale of the Bonds
shall be loaned to the Company and paid over to the Trustee for the benefit of
the Company and deposited in the Project Fund and used to finance the Project.
Each disbursement request shall be on the form attached hereto as Exhibit B,
executed by an Authorized Company Representative and approved by the Designated
Officer. Subject to the provisions below, disbursements from the Project Fund
shall be made only to reimburse or pay the Company, or any person designated by
the Company, for the following:
(a) Costs incurred directly or indirectly for or in connection with the
acquisition, construction, installation, equipment or improvement of the Project
Facilities, including costs incurred in respect of the Project for preliminary
planning and studies; architectural, legal, engineering, surveying, accounting,
consulting, supervisory and other services; labor, services and materials; and
recording of documents and title work;
(b) Subject to the limitations set forth in the Act, financial, legal,
accounting, printing and engraving fees, charges and expenses, and all other
such fees, charges and expenses incurred in connection with the authorization,
sale, issuance and delivery of the Bonds; or
(c) Any other costs, expenses, fees and charges properly chargeable to the cost
of the acquisition, construction, installation, equipment or improvement of the
Project Facilities and that comply with the Company's representations and
warranties in Section 2.02 of this Agreement.
Section 3.04. Investment of Fund Moneys. At the written direction of an
Authorized Company Representative, any moneys held as part of the Trust Estate
shall be invested or reinvested by the Trustee in Eligible Investments. Each of
the Issuer and the Company hereby covenants that it will restrict any investment
and reinvestment and the use of the proceeds of the Bonds in such manner and to
such extent, if any, as may be necessary so that the Bonds will not constitute
arbitrage bonds under Section 148 of the Code.
The Company shall provide the Issuer with a certificate of an appropriate
officer, employee or agent of or consultant to the Company for inclusion in the
transcript of proceedings for the Bonds, setting forth the reasonable
expectations of the Company on the date of delivery of and payment for the Bonds
regarding the amount and use of the proceeds of the Bonds and the facts,
estimates and circumstances on which those expectations are based.
The Company agrees that at no time shall any funds constituting gross
proceeds of the Bonds be issued in any manner to cause or result in a prohibited
payment under applicable regulations pertaining to, or in any other fashion as
would constitute failure of compliance with, Section 148 of the Code.
If there is any amount required to be paid to the United States pursuant to
Section 148(f) of the Code, the Company shall pay such amount to the Trustee for
deposit to the Rebate Fund created under Section 5.03 of the Indenture, who will
submit the payment to the United States.
Section 3.05. Issuer's Fees. The Company will pay the Issuer's closing
fee in the amount of $50,000 and the legal fee of Bond Counsel in the amount of
$100,000 on the date of issuance of the Bonds and will pay the Issuer's annual
fee, in annual installments, in the amount of $25,000 per year payable (and not
subject to refund) commencing on the date the Bonds are issued and thereafter,
a like amount on December 1, 2011 and on December 1 of each year thereafter
until the payment or defeasance of the Bonds (with no annual fee payable on the
maturity date provided that the Bonds are paid on or before such date). The
Company will also pay any other administrative expenses incurred in connection
with the financing of the Project, and any such additional fees and expenses
(including reasonable attorney's fees) incurred by the Issuer or the Trustee in
connection with inquiring into, or enforcing, the performance of the Company's
obligations hereunder, within 30 days of receipt of a statement from the Issuer
requesting payment of such amount.
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN
INCLUDING ADDITIONAL PAYMENTS
SECTION 4.01. Loan of Proceeds; Installment Payments. The Issuer agrees,
upon the terms and conditions contained in this Agreement, to lend to the
Company the proceeds received by the Issuer from the sale of the Bonds. Such
proceeds shall be disbursed to or on behalf of the Company as provided in
Section 3.03.
On each date on which any payment of principal of or interest on the Bonds
shall become due (whether at maturity, or upon redemption or acceleration or
otherwise), the Company will pay or cause to be paid to the Trustee, in
immediately available funds, an amount which, together with other moneys held by
the Trustee under the Indenture and available therefor, will enable the Trustee
to make such payment in full in a timely manner ("Installment Payments").
In furtherance of the foregoing, so long as any Bonds are outstanding, the
Company will pay or cause to be paid all amounts required to prevent any
deficiency or default in any payment with respect to the Bonds, including any
deficiency caused by an act or failure to act by the Trustee, the Company, the
Issuer or any other Person.
The Issuer assigns all amounts payable under this Section by the Company to
the Trustee pursuant to the Indenture for the benefit of the Holders of the
Bonds. The Company assents to such assignment. Accordingly, the Company will
pay directly to the Trustee at its designated office all payments payable by the
Company pursuant to this Section.
Section 4.02. Additional Payments. The Company will also pay the
following upon demand after receipt of a xxxx therefor:
(a) The reasonable and documented out-of-pocket fees and expenses, including
reasonable attorneys' fees, of the Issuer incurred in connection with this
Agreement, the Indenture, the Tax Regulatory Agreement and the Bonds, and the
making of any amendment or supplement thereto, including, but not limited to:
(i) those described in Section 3.05 (which includes, among other fees and
expenses, the fees and expenses associated with the initial drafting, execution
and delivery of this Agreement, the Tax Regulatory Agreement and the Bonds),
(ii) those described in Section 7.04 and (iii) any other payments or
indemnification required under Section 5.02.
(b) The fees and expenses of the Trustee under the Indenture, including
reasonable attorneys' fees of the Trustee for any services rendered by them
under the Indenture, including those described in Section 7.04, and any other
payments or indemnification required under Section 5.02, such fees, expenses and
payments to be paid directly to the Trustee for its own account as and when such
fees and expenses become due and payable.
The Company further agrees to pay all reasonable and documented
out-of-pocket costs and expenses (including reasonable attorneys' fees and
expenses) of the Issuer incurred after the initial issuance of the Bonds in the
preparation of any responses, reproduction of any documentation or participation
in any inquiries, investigations or audits from any Person solely or primarily
in connection with the Bonds, including without limitation, the Internal Revenue
Service, the Securities Exchange Commission or other governmental agency.
Section 4.03. Deposit of Moneys in Bond Fund; Moneys for Purchase and
Redemption. The Company may at any time deposit moneys in the Bond Fund,
without premium or penalty, to be held by the Trustee for application to
Installment Payments not yet due and payable, and the Issuer agrees that the
Trustee shall accept such deposits when tendered by the Company. Such deposits
shall be credited against the Installment Payments, or any portion thereof, in
the order of their due dates. In addition, the Company may at any time deliver
moneys to the Trustee in addition to such deposits with written instructions to
the Trustee to use such moneys for the purpose of making open market purchases
of Bonds. Such deposits or such delivery of moneys for Bond purchases shall not
in any way alter or suspend the obligations of the Company under this Agreement
during the term hereof as provided in Section 8.01.
In addition, the Company may deliver moneys to the Trustee for use for
optional redemption of Bonds pursuant to Sections 6.01 and 6.02 and shall
deliver moneys to the Trustee for mandatory redemption of Bonds as required by
Section 4.02(b)(ii) of the Indenture.
Section 4.04. Obligations Unconditional. The obligations of the Company
to make payments required by Sections 4.01, 4.02 and 4.03 of this Agreement and
to perform its other agreements contained herein shall be absolute and
unconditional, and the Company shall make such payments without abatement,
diminution or deduction regardless of any cause or circumstances whatsoever,
including, without limitation, any defense (other than payment), setoff,
recoupment or counterclaim which the Company may have or assert against the
Issuer, the Trustee or any other Person.
Section 4.05. Assignment by Company. Rights granted to the Company under
this Agreement may be assigned in whole or in part by the Company without the
necessity of obtaining the consent of the Issuer or the Trustee, subject,
however, to each of the following conditions:
(a) unless waived by the Issuer or the Trustee, the Company shall notify the
Issuer and the Trustee in writing of the identity of any assignee at least
30 days prior to the effective date of such assignment;
(b) no assignment shall relieve the Company from primary liability hereunder
for its obligations hereunder, and the Company shall continue to remain
primarily liable for the payment of the Installment Payments and Additional
Payments and for performance and observance of the agreements on its part
herein provided to be performed and observed by it;
(c) any assignment from the Company must retain for the Company such rights
and interests as will permit it to perform its obligations under this Agreement;
(d) the Company shall, within 30 days after execution thereof, furnish or cause
to be furnished to the Issuer and the Trustee a true and complete copy of each
such assignment; and
(e) any assignment from the Company shall not materially impair fulfillment of
the purposes to be accomplished by operation of the Project Facilities as a
project, the financing of which is permitted under the Act.
Section 4.06. Assignment by Issuer. The Issuer will assign its rights
under and interest to this Agreement (except for the Unassigned Issuer's Rights)
to the Trustee pursuant to the Indenture as security for the payment of the
Bonds. Otherwise, the Issuer will not sell, assign or otherwise dispose of its
rights under or interest in this Agreement nor create or permit to exist any
lien, encumbrance or security interest thereon.
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
SECTION 5.01. Lease, Sale or Grant of Use by Company. Subject to the
provisions of Section 5.03, the Company may lease, sell or grant the right to
occupy and use the remaining Project Facilities, in whole or in part, to others,
provided that:
(a) no such grant, sale or lease shall relieve the Company from its obligations
under this Agreement;
(b) the Company shall retain such rights and interests as will permit it to
comply with its obligations under this Agreement; and
(c) no such grant, sale or lease shall impair the purposes of the Act.
Section 5.02. Indemnification of Issuer and Trustee. The Company agrees
that the Issuer and the Trustee and the members, officers, and employees,
thereof shall not be liable for and the Company covenants and agrees to
protect, exonerate, defend, indemnify and save the Issuer and the members,
officers, and employees, thereof and the Trustee, its officers and employees,
harmless from and against (a) any and all costs, damages or liabilities which
may arise out of the issuance of the Bonds or arising from any breach or
default on the part of the Company to be performed pursuant to the terms of this
Agreement and (b) all reasonable costs, counsel fees, expenses and liabilities
incurred in or about the defense of any such claims or actions or proceedings
brought thereon. The Company may, at its cost and in its name or in the name
of the Issuer, prosecute or take any other action involving third persons which
the Company deems necessary in order to ensure or protect the Company's rights
under this Agreement; in such event, the Issuer will reasonably cooperate with
the Company, but at the sole expense of the Company.
The Company agrees to indemnify the Trustee and the Issuer for and to hold
each of them harmless against all liabilities, claims, court costs and
reasonable and documented out-of-pocket expenses (including reasonable and
documented fees and expenses of counsel necessary in defending against the same)
incurred without gross negligence or willful misconduct on the part of the
Trustee or the Issuer, as applicable, on account of any action taken or omitted
to be taken by the Trustee or the Issuer, as applicable, in accordance with the
terms of this Agreement, the Bonds or the Indenture or any action taken at the
request of or with the consent of the Company, including the costs and expenses
of the Trustee and the Issuer in defending itself against any such claim, action
or proceeding brought in connection with the exercise or performance of any of
its powers or duties under this Agreement, the Bonds or the Indenture.
In case any action or proceeding is brought against the Issuer or the
Trustee in respect of which indemnity may be sought hereunder, the party seeking
indemnity shall promptly (but in any event within 15 days of receipt of service)
give notice of that action or proceeding to the Company enclosing copies of all
papers served, and the Company upon receipt of that notice shall have the
obligation and the right to assume the defense of the action or proceeding;
provided, that failure of a party to give that notice shall not relieve the
Company from any of its obligations under this Section unless that failure
materially prejudices the defense of the action or proceeding by the Company.
At its own expense, an indemnified party may employ separate counsel and
participate in the defense. The Company shall not be liable for any settlement
made without its consent.
Notwithstanding anything contained herein to the contrary, the Company
shall not be obligated to indemnify or hold harmless the Issuer or the Trustee,
or their respective members, officers and employees for their gross negligence
or willful misconduct.
The foregoing indemnification is intended to and shall include the
indemnification of all affected officials, directors, trustees, officers and
employees of the Issuer and the Trustee, respectively. That indemnification is
intended to and shall be enforceable by the Issuer and the Trustee,
respectively, to the full extent permitted by law.
Section 5.03. Company Not to Adversely Affect Exclusion From Gross Income
of Interest on the Bonds. The Company hereby represents that it has taken and
caused to be taken, and covenants that it will take and cause to be taken, all
actions that may be required of it, alone or in conjunction with the Issuer, for
the interest on the Bonds to be and to remain excludable from gross income for
federal income tax purposes, and represents that it has not taken or permitted
to be taken on its behalf, and covenants that it will not take or permit to be
taken on its behalf, any action that would adversely affect such excludability
under the provisions of the Code.
The Company also covenants that it will restrict the investment and
reinvestment and the use of the proceeds of the Bonds in such manner and to such
extent, if any, as may be necessary so that the Bonds will not constitute
arbitrage bonds under Section 148 of the Code.
The Company hereby covenants that on or before the ninetieth day following
the date any of the Project Facilities are no longer being operated as
qualifying exempt facilities under the Code (unless such facilities have simply
ceased to be operated), or such later date as provided in the Indenture, the
Company shall cause a related amount of Bonds to be redeemed pursuant to the
Mandatory Redemption provision of the Bonds.
Section 5.04. Company to Maintain its Existence; Mergers or
Consolidations. The Company covenants that it will not merge or consolidate
with any other legal entity or sell or convey all or substantially all of its
assets to any other legal entity, except that the Company may merge or
consolidate with, or sell or convey all or substantially all of its assets to
any other legal entity, provided that (a) the Company shall be the continuing
legal entity or the successor legal entity (if other than the Company) shall be
a legal entity organized and existing under the laws of the United States of
America or a state thereof and such legal entity shall expressly assume the
due and punctual payment of the Installment Payments hereunder in order to
ensure timely and proper payment of the principal of and interest on all the
Bonds, according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Agreement to be
performed by the Company and (b) the Company or such successor legal entity, as
the case may be, shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of any such covenant
or condition and no event which with the lapse of time, the giving of notice or
both would constitute an Event of Default under Section 7.01 shall have occurred
and be continuing.
In case any such consolidation, merger, sale or conveyance and upon the
assumption by the successor legal entity of the obligations under this
Agreement and on the Bonds in accordance with the foregoing, such successor
legal entity shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as a party hereto, and the Company shall
thereupon be relieved of any further obligations or liabilities hereunder and
upon the Bonds and the Company as the predecessor legal entity may thereupon or
at any time thereafter be dissolved, wound-up or liquidated.
Section 5.05. Reports and Audits. The Company shall as soon as
practicable, but in no event later than six months after the end of each of
its fiscal years, file with the Trustee and the Issuer audited financial
statements of the Company prepared as of the end of such fiscal year; provided
that the Company may satisfy this requirement by its filing of such information
with the Securities and Exchange Commission (xxx.xxx.xxx) and the Municipal
Securities Rulemaking Board (xxx.xxxx.xxxx.xxx) in accordance with their
respective filing requirements.
Section 5.06. Insurance. The Company shall maintain, or cause to be
maintained, insurance covering such risks and in such amounts as is customarily
carried by similar industries as the Company, and which insurance may be, in
whole or in part, self-insurance.
ARTICLE VI
OPTIONS; PREPAYMENT OF LOAN
SECTION 6.01. Options to Terminate. The Company shall have, and is hereby
granted, an option to prepay and terminate the Loan, upon satisfaction of the
following conditions at any time prior to full payment of the Bonds (or
provision for payment thereof having been made in accordance with the
provisions of the Indenture) (a) in accordance with Article IX of the Indenture,
by paying to the Trustee an amount which, when added to the amount on deposit
in the funds established under the Indenture and available therefor, will be
sufficient to pay, retire and, pursuant to the Indenture, redeem all the
outstanding Bonds in accordance with the provisions of the Indenture (including,
without limiting the generality of the foregoing, principal of and interest
to maturity or the earliest applicable redemption date, as the case may be, and
expenses of redemption and the Trustee's fees and expenses due hereunder or
under the Indenture), and in case of redemption making arrangements
satisfactory to the Trustee for the giving of the required notice of redemption,
(b) by giving the Issuer notice in writing of such termination and (c) by
making full payment of Additional Payments due under Section 4.02; thereafter
such termination shall forthwith become effective.
Any prepayment pursuant to this Section 6.01 shall either comply with the
provisions of Article IX of the Indenture or result in redemption of the Bonds
within 90 days of the date of prepayment.
Section 6.02. Optional Redemption and Option to Prepay Upon
Extraordinary Optional Redemption Under the Indenture. On or after December 1,
2020, the Company has the option to prepay the Loan, in whole or in part, and
thereby cause the redemption of the Bonds on the terms and conditions set forth
in Section 4.02(a) of the Indenture. The Company shall also have the option,
upon the occurrence of certain extraordinary circumstances described therein,
to prepay the Loan in whole or in part upon the terms and conditions set forth
in Section 4.02(b)(i) of the Indenture.
Section 6.03. Actions by Issuer. At the request of the Company or the
Trustee, the Issuer shall take all steps required of it under the applicable
provisions of the Indenture or the Bonds to effect the redemption of all or
a portion of the Bonds pursuant to this Article VI; provided that, in such
event, the Company shall reimburse the Issuer for its reasonable expenses,
including attorneys' fees, incurred in complying with such request.
Section 6.04. Release on Exercise of Option to Prepay Loan. Upon the
payment of all amounts due hereunder pursuant to any option to prepay the
Loan granted in this Agreement, the Issuer shall upon receipt of the
prepayment, deliver to the Company, if necessary, a release from the Trustee
of the lien of the Indenture.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01. Events of Default. Each of the following shall be an Event
of Default:
(a) The Company shall fail to pay the amounts required to be paid under
Section 4.01 or 4.02 on the date specified therein.
(b) Failure by the Company to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to in
Section 7.01(a), (other than certain representations, warranties and covenants
regarding various matters relating to the federal tax status of the Bonds or
with respect to prevailing wage requirements) for a period of 60 days after
written notice specifying such failure and requesting that it be remedied shall
have been given to the Company by the Issuer or the Trustee, unless the Issuer
and the Trustee shall agree in writing to an extension of such time prior to its
expiration; provided, however, if the failure stated in the notice cannot be
corrected within the applicable period, it shall not constitute an Event of
Default if corrective action is instituted by the Company within the applicable
period and is being diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company or the voluntary initiation
by the Company of any proceeding under any federal or state law relating to
bankruptcy, insolvency, arrangement, reorganization, readjustment of debt or any
other form of debtor relief, or the initiation against the Company of any such
proceeding which shall remain undismissed for 60 days, or failure by the Company
to promptly have discharged any execution, garnishment or attachment of such
consequence as would materially impair the ability of the Company to carry on
its operations, or assignment by the Company for the benefit of creditors, or
the entry by the Company into an agreement of composition with creditors or the
failure generally by the Company to pay its debts as they become due.
(d) The occurrence of an Event of Default as defined in the Indenture.
Section 7.02. Remedies on Default. Whenever an Event of Default shall
have happened and be existing, any one or more of the following remedial steps
may be taken:
(a) if acceleration of the principal amount of the Bonds has been declared
pursuant to Section 7.03 of the Indenture, the Trustee shall declare all
Installment Payments to be immediately due and payable, whereupon the same shall
become immediately due and payable; or
(b) the Issuer or the Trustee may pursue all remedies now or hereafter existing
at law or in equity to collect all amounts then due and thereafter to become due
under this Agreement or to enforce the performance and observance of any other
obligation or agreement of the Company under those instruments.
Notwithstanding the foregoing, the Trustee shall not be obligated to take
any step that in its reasonable opinion will or might cause it to expend time or
money or otherwise incur liability unless and until a satisfactory indemnity
bond has been furnished to the Trustee at no cost or expense to it. Any amounts
collected pursuant to action taken under this Section (except for amounts
payable directly to the Issuer or the Trustee pursuant to Section 4.02, 5.02 or
7.04) shall be paid into the Bond Fund and applied in accordance with the
provisions of the Indenture or, if the outstanding Bonds have been paid and
discharged in accordance with the provisions of the Indenture, shall be paid as
provided in Section 9.01 of the Indenture for transfers of remaining amounts in
the Bond Fund.
The provisions of this Section are subject to the further limitation that
the rescission by the Trustee of its declaration that all of the Bonds are
immediately due and payable also shall constitute an annulment of any
corresponding declaration made pursuant to paragraph (a) of this Section and a
waiver and rescission of the consequences of that declaration and of the Event
of Default with respect to which that declaration has been made, provided that
no such waiver or rescission shall extend to or affect any subsequent or other
default or impair any right consequent thereon.
Violation of or non-compliance with any prevailing wage requirement
(whether set forth in this Agreement or by statute, rule or law or otherwise)
shall have the consequences and remedies as set forth by statute, rule or law or
otherwise.
Section 7.03. No Remedy Exclusive. No remedy conferred upon or reserved
to the Issuer or the Trustee by this Agreement is intended to be exclusive of
any other available remedy or remedies, but each and every remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement, now or hereafter existing at law, in equity or by statute. No delay
or omission to exercise any right or power accruing upon any default shall
impair that right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the Issuer or the Trustee to exercise
any remedy reserved to it in this Article, it shall not be necessary to give
any notice, other than any notice required by law or for which express
provision is made herein.
Section 7.04. Agreement to Pay Fees and Expenses. If an Event of Default
should occur and the Issuer or the Trustee should incur expenses, including
attorneys' fees, in connection with the enforcement of this Agreement or the
collection of sums due thereunder, the Company shall reimburse the Issuer and
the Trustee, as applicable, for the reasonable expenses so incurred upon demand.
Section 7.05. No Waiver. No failure by the Issuer or the Trustee to
insist upon the performance by the Company of any provision hereof shall
constitute a waiver of their right to performance and no express waiver shall
be deemed to apply to any other existing or subsequent right to remedy the
failure by the Company to observe or comply with any provision hereof.
Section 7.06. Notice of Default. The Company shall notify the Trustee
immediately and in writing if it becomes aware of the occurrence of any Event
of Default hereunder or of any fact, condition or event which, with the giving
of notice or passage of time or both, would become an Event of Default.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Term of Agreement. This Agreement shall be and remain in
full force and effect from the date of issuance of the Bonds until such time
as all of the Bonds shall have been fully paid (or provision made for such
payment) pursuant to the Indenture and all other sums payable by the Company
under this Agreement shall have been paid, except for obligations of the
Company under Section 4.02, 5.02 and 7.04, which shall survive any termination
of this Agreement.
Notwithstanding any termination of this Agreement, any payment of any or
all of the Bonds or any discharge of the Indenture, if Bonds are redeemed
pursuant to the mandatory redemption upon determination of taxability as to the
Bonds, the Company shall pay all additional amounts required to be paid under
Section 4.02 of the Indenture at the time provided therein.
Section 8.02. Amounts Remaining in Funds. Any amounts in the Bond Fund
remaining unclaimed by the Holders of the Bonds (whether at stated maturity, by
redemption or pursuant to any mandatory sinking fund requirements or otherwise),
shall be deemed to belong to and shall be paid, to the proper party pursuant to
applicable escheat laws. Further, any other amounts remaining in the Bond Fund
and any other special fund for accounts created under this Agreement or the
Indenture after all of the outstanding Bonds shall be deemed to have been paid
and discharged under the provisions of the Indenture and all other amounts
required to be paid under this Agreement and the Indenture have been paid, shall
be paid to the Company to the extent that those moneys are in excess of the
amounts necessary to effect the payment and discharge of the outstanding Bonds.
Section 8.03. Notices. All notices, certificates, requests or other
communications hereunder shall be in writing and shall be deemed to be
sufficiently given when received or upon refusal of delivery at the applicable
Notice Address. The Issuer, the Company or the Trustee may, by providing
written notice to each other, designate any further or different addresses to
which subsequent notices, certificates, requests or other communications shall
be sent.
Section 8.04. Extent of Covenants of Issuer; No Personal Liability. All
covenants, obligations and agreements of the Issuer contained in this Agreement
or the Indenture shall be effective to the extent authorized and permitted by
applicable law. No such covenant, obligation or agreement shall be deemed to be
a covenant, obligation or agreement of any present or future member, trustee,
officer, agent or employee of the Issuer in other than his official capacity,
and no official executing the Bonds shall be liable personally on the Bonds or
be subject to any personal liability or accountability by reason of the issuance
thereof or by reason of the covenants, obligations or agreements of the Issuer
contained in this Agreement or in the Indenture.
Section 8.05. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding in accordance with its terms upon the Issuer, the
Company and their respective permitted successors and assigns.
Section 8.06. Amendments and Supplements. Except as otherwise expressly
provided in this Agreement or the Indenture, subsequent to the issuance of the
Bonds and prior to all conditions provided for in the Indenture for release of
the Indenture having been met, this Agreement may not be effectively amended,
changed, modified, altered or terminated except in accordance with the
provisions of Article XI of the Indenture, as applicable.
Section 8.07. Execution Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be regarded as an original and
all of which shall constitute but one and the same instrument.
Section 8.08. Severability. If any provision of this Agreement, or any
covenant, obligation or agreement contained herein is determined by a court to
be invalid or unenforceable, that determination shall not affect any other
provision, covenant, obligation or agreement, each of which shall be construed
and enforced as if the invalid or unenforceable portion were not contained
herein. That invalidity or unenforceability shall not affect any valid and
enforceable application thereof, and each such provision, covenant, obligation
or agreement shall be deemed to be effective, operative, made, entered into or
taken in the manner and to the full extent permitted by law.
Section 8.09. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
Section 8.10. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for the further assurance, correction or performance of the expressed intention
of this Agreement.
Section 8.11. Issuer and Company 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 a Designated Officer and for the Company by an Authorized Company
Representative. The Trustee shall be authorized to act on any such approval or
request.
Section 8.12. Immunity of Stockholders, Officers and Directors. No
recourse under or upon any obligation, covenants or agreement contained in this
Agreement or in any agreement supplemental hereto, or in the Bonds, or because
of any indebtedness evidenced thereby, shall be had against any stockholder,
member, officer or director, as such, past, present or future, of the Company
or of any predecessor or, subject to Section 5.04 hereof, successor legal
entity, either directly or through the Company or any predecessor or successor
legal entity, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Bonds by the Holders thereof and as part of the consideration
for the issuance of the Bonds.
Section 8.13. Section Headings. The table of contents and headings of
the various articles and sections of this Agreement are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions hereof. References to article and section numbers are references
to sections in this Agreement unless otherwise indicated.
IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement
to be duly executed in their respective names, all as of the date hereinbefore
written.
ATTEST: LORAIN COUNTY PORT AUTHORITY
/s/ Xxxxx XxXxxxxx By/s/ Xxxx X. Xxxxxx
___________________ _____________________
Secretary Executive Director
UNITED STATES STEEL CORPORATION
By /s/ X. X. Xxxxxxxx
______________________
Title Vice President &
Treasurer
[SIGNATURE PAGE TO LOAN AGREEMENT]
FISCAL OFFICER'S CERTIFICATE
The undersigned, fiscal officer of the Issuer, hereby certifies that the moneys
required to meet the obligations of the Issuer during the fiscal year 2010 under
the Agreement have been lawfully appropriated by the Board of Directors of the
Issuer for such purposes and are in the treasury of the Issuer or in the process
of collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Section 5705.41 and
5705.44, Ohio Revised Code.
Dated: December 1, 2010 /s/ Xxxxx XxXxxxxx
____________________
Secretary
EXHIBIT A
PROJECT FACILITIES
Lorain Quench and Temper
Project Facilities
Anticipated Commitments
Item Description
Equipment
Q&T/Heat Treat Line
Straightener
NDT Equipment
Material Handling
Standard API Threaders
Facers
Coupling Starter/Screw-on
Hydrotester
Thread Protector Appliers
Grade Comparer
Overhead Cranes for Billet
Relo.
Installation
Civil/Mechanical/Electrical
Installation
Building Painting
Spoils Management
Rail Extensions
Utilities Demolition
Engineering and Project
Development
Development and Detail
Process Engineering
Process Control System
Development
Other Project Development
Costs
Anticipated Commitments
Item Description
Equipment
Premium CNC Threaders
Active Field SEA
Weigh/Measure/Stencil
Cut-off Saws
UV Coater
Crane Modifications
Process Control Equipment
Electrical Equipment
Operating Spares
Vendor Training
Installation
Billet Relocation Upgrades
Engineering
Process Control/Integration
Design
Engineering - Startup and
Commissioning
Engineering - Construction
Management
EXHIBIT B
FORM OF DISBURSEMENT REQUEST
Statement No. ____Requesting Disbursement of Funds From Project Fund Pursuant to
Section 3.03 of the Loan Agreement between
Lorain County Port Authority and United States Steel Corporation
Pursuant to Section 3.03 of the Loan Agreement (the "Agreement") between
the Lorain County Port Authority (the "Issuer") and United States Steel
Corporation (the "Company") dated December 1, 2010, the undersigned Authorized
Company Representative hereby requests and authorizes The Bank of New York
Mellon Trust Company, N.A., a national banking association organized and
existing under the laws of the United States of America and qualified to
exercise corporate trust powers in the State of Ohio, as trustee (the "Trustee")
under the Trust Indenture, dated as of December 1, 2010 (the "Indenture"), by
and between the Issuer and the Trustee, to pay to the Company or to the
person(s) listed on the Disbursement Schedule, if any, attached hereto out of
the moneys deposited in Project Fund (as established pursuant to the Indenture)
the aggregate sum of $__________ to reimburse the Company in full, or to pay
such person(s) as indicated in any Disbursement Schedule for the advances,
payments and expenditures made by it in connection with the Project.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreement.
In connection with the foregoing request and authorization, the undersigned
hereby certifies that:
(a) Each item for which disbursement is requested hereunder is properly
payable out of the Project Fund in accordance with the terms and
conditions of the Agreement and none of those items has formed the
basis or any disbursement heretofore made from the Project Fund.
(b) This statement and all exhibits hereto, including the Disbursement
Schedule, shall be conclusive evidence of the facts and statements set
forth herein and shall constitute full warrant, protection and
authority to the Trustee for its actions taken pursuant hereto.
(c) This statement constitutes the approval of the Company of each
disbursement hereby requested and authorized.
This ____ day of ______, 20___.
___________________________________
Authorized Company Representative
CERTIFICATE OF ISSUER
In accordance with Section 3.03 of the Agreement, the written approval of
the Issuer is hereby evidenced by the signature of the Designated Officer in
reliance on the certifications of the Company as set forth above.
LORAIN COUNTY PORT AUTHORITY
Approved By:_________________________
Print Name:__________________________
Title:_______________________________
EXHIBIT C
FORM OF COMPLETION CERTIFICATE
Pursuant to Section 3.01(a) of the Loan Agreement, dated as of December 1,
2010 (the "Agreement"), between Lorain County Port Authority (the "Issuer") and
United States Steel Corporation (the "Company"), the undersigned hereby
certifies to the Issuer and to the Trustee (with all capitalized terms used and
not otherwise defined herein having the meaning set forth in the Agreement) the
following:
(i) the Project was substantially completed on or about __________, 2011,
(ii) that all other facilities necessary in connection with the Project have
been acquired, constructed, installed, equipped and improved,
(iii) _________ shall be retained in the Project Fund for the payment of
costs of the Project not yet due or for liabilities which the Company is
contesting or which otherwise should be retained ____________ [explain the
reasons such amounts are being contested or should be retained.]
(iv) other than the amounts referred to in (v) above, of the remaining balance
in the Project Fund:
(A) $_____________ is being used to acquire, construct,
install, equip and improve such additional personal property in
connection with the Project Facilities; and/or
(B) $_____________ shall be paid into the Bond Fund to be
applied to pay the interest component of Bond Service Charges on
the next Interest Payment Date (and the Company is hereby
requesting, and by signature below the Issuer is hereby
approving, a credit against the obligations of the Company to
make Installment Payments equal to the amount of moneys so
transferred from the Project Fund).
Attached hereto is such evidence and the Opinion of Bond Counsel as are
required by the Indenture, if any.
This ____ day of ______, 20___.
___________________________________
Authorized Company Representative
CERTIFICATE OF ISSUER
In accordance with Section 3.01 of the Agreement, the written approval of
the Issuer is hereby evidenced by the signature of the Designated Officer in
reliance on the certifications of the Company as set forth above.
LORAIN COUNTY PORT AUTHORITY
Approved By:_________________________
Print Name:__________________________
Title:_______________________________
