LOAN AGREEMENT Dated as of December 27, 2010 Between THE INDUSTRIAL DEVELOPMENT BOARD OF THE COUNTY OF BRADLEY AND THE CITY OF CLEVELAND, TENNESSEE and OLIN CORPORATION Relating to the issuance of $41,000,000 Recovery Zone Facility Revenue Bonds (Olin Corporation Project), Series 2010 by The Industrial Development Board of the County of Bradley and the City of Cleveland, Tennessee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B – Form of Note

 

 

 

THIS LOAN AGREEMENT (“this Loan Agreement”) dated as of December 27, 2010 is entered into by THE INDUSTRIAL DEVELOPMENT BOARD OF THE COUNTY OF BRADLEY AND THE CITY OF CLEVELAND, TENNESSEE, a Tennessee public corporation (the “Board”), and OLIN CORPORATION, a corporation organized under the laws of the Commonwealth of Virginia (the “Corporation”).

 

 

This Loan Agreement is being entered into in connection with the Board’s issuance of $41,000,000 aggregate principal amount of Recovery Zone Facility Revenue Bonds (Olin Corporation Project), Series 2010 (the “Bonds”), pursuant to a Trust Indenture dated as of December 27, 2010 (the “Indenture”) between the Board and U. S. Bank National Association, a national banking association, as trustee (in such capacity, the “Trustee”).  The purpose of this Loan Agreement and of related Financing Documents is described in the recitals to the Indenture.

 

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto covenant, agree and bind themselves as follows:

 

 

 

SECTION 1.1

Definitions

 

For all purposes of this Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meaning assigned in the Indenture.

 

SECTION 1.2

General Rules of Construction

 

For all purposes of this Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)           Defined terms in the singular shall include the plural as well as the singular, and vice versa.

 

(b)           The definitions in the recitals to this instrument are for convenience only and shall not affect the construction of this instrument.

 

(c)           All accounting terms not otherwise defined herein have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with generally accepted accounting principles.  All references herein to “generally accepted accounting principles” refer to such principles as they exist at the date of application thereof.

 

(d)           All references in this instrument to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed.

 

(e)           The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Loan Agreement as a whole and not to any particular Article, Section or other subdivision.

 

(f)           All references in this instrument to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof.

 

(g)           The term “person” shall include any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization and any government or any agency or political subdivision thereof.

 

SECTION 1.3

Effect of Headings and Table of Contents

 

The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 1.4

Date of Loan Agreement

 

The date of this Loan Agreement is intended as a date for the convenient identification of this Loan Agreement and is not intended to indicate that this Loan Agreement was executed and delivered on said date.

 

SECTION 1.5

Separability Clause

 

If any provision in this Loan Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 1.6

Governing Law

 

This Loan Agreement shall be construed in accordance with and governed by the laws of the State of Tennessee.

 

SECTION 1.7

Counterparts

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all such counterparts shall together constitute but one and the same instrument.

 

SECTION 1.8

Entire Agreement

 

This Loan Agreement contains the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, including, without limitation, commitments or understandings with respect to such matters.

 

 

 

SECTION 2.1

Issuance of Bonds

 

Simultaneously with the delivery of this Loan Agreement, the Board shall execute and deliver the Bonds pursuant to the Indenture.  As of the date of delivery of the Bonds, the Outstanding Principal

 

 

SECTION 2.2

Loan of Bond Proceeds

 

(a)           The Board does hereby loan to the Corporation the Outstanding Principal Amount of the Bonds on the date of their initial delivery, and the Corporation does hereby borrow such amounts from the Board and instruct the Board to apply the proceeds of the initial Advances of proceeds of the Bonds, in accordance with Article 6 of the Indenture.

 

(b)           As additional Advances are made in accordance with the Indenture that increase the Outstanding Principal Amount of the Bonds, the Board shall be deemed to have made additional loans to the Corporation in an amount equal to the amount of such Advances, effective on the date thereof, and the terms and conditions of this Loan Agreement shall apply to the Outstanding Principal Amount of the Bonds, after giving effect to all additional loans made under this subsection (b).

 

SECTION 2.3

Deposits and Withdrawals From Acquisition Fund

 

(a)           Future advances with respect to the Bonds shall be deposited in the Acquisition Fund or the Costs of Issuance Fund in accordance with Section 6.8 of the Indenture.

 

(b)           The Corporation may cause withdrawals to be made from the Acquisition Fund for the payment of Acquisition Costs (including reimbursement to the Corporation for any such Costs paid directly by the Corporation), but only (1) if no Loan Default exists and no event has occurred and is continuing which, with notice or lapse of time or both, would constitute a Loan Default and (2) the Corporation delivers to the Trustee a duly completed requisition for each such withdrawal in the form attached as Exhibit 6.10(b) to the Indenture executed by an Authorized Corporation Representative and the Purchaser Agent.

 

(c)           The Corporation may cause withdrawals to be made from the Costs of Issuance Fund to pay Costs of Issuance (including reimbursement to the Corporation for any such Costs paid directly by the Corporation), but only (1) if no Loan Default exists, and (2) the Corporation delivers to the Trustee a duly completed requisition for each such withdrawal in the form attached as Exhibit 6.9(b) to the Indenture executed by an Authorized Corporation Representative and the Purchaser Agent.

 

 

 

SECTION 3.1

Agreement to Acquire; Cooperation of Board

 

(a)           The Board shall use proceeds of the Bonds deposited in the Acquisition Fund to pay Acquisition Costs for acquisition and construction of the buildings, structures, equipment and other capital items described in Exhibit A to this Loan Agreement (collectively, the “Bond-Financed Facilities”).

 

(b)           The Corporation shall be solely responsible for the planning and design of the Bond-Financed Facilities, the preparation of contracts and purchase orders for the Bond-Financed Facilities, and the supervision of the work on the Bond-Financed Facilities.  The acquisition and construction of the Bond-Financed Facilities shall be in accordance with all applicable zoning, planning and building

 

 

(c)           The Board shall, at the request of the Corporation, enter into, assume or accept the assignment of such contracts and purchase orders for the Bond-Financed Facilities as the Corporation shall request in writing.  The Board has appointed the Corporation as its agent for acquisition and construction of the Bond-Financed Facilities and does hereby confirm such appointment.  The Corporation, as agent of the Board, may enter into, assume or accept the assignment of contracts and purchase orders for the Bond-Financed Facilities.  The obligations of the Board under all such contracts and purchase orders (whether entered into directly by the Board or by the Corporation as agent of the Board) shall be limited as provided in Article 8, and th e Board’s limited liability shall be plainly and conspicuously stated thereon.  At the request of the Corporation, the Board shall execute such instruments or other documents as shall be necessary or appropriate to confirm the Corporation’s status as agent of the Board with respect to the acquisition and construction of the Bond-Financed Facilities.

 

(d)           The Board will cooperate with the Corporation in good faith in the acquisition and construction of the Bond-Financed Facilities in order that the Bond-Financed Facilities may be completed and placed in service as soon as practicable.

 

(e)           The Corporation may cause changes or amendments to be made in the plans and specifications for the Bond-Financed Facilities, provided (1) such changes or amendments will not change the nature of the Bond-Financed Facilities to the extent that they would not qualify for financing under the Enabling Law, and (2) the Corporation delivers to the Trustee a Favorable Tax Opinion.

 

SECTION 3.2

No Warranty; Corporation to Complete Bond-Financed Facilities

 

(a)           The Corporation recognizes that because the plans, specifications and directions for acquiring and constructing the Bond-Financed Facilities have been, or will be, furnished by it, the Board makes no warranty, either express or implied, with respect to the Bond-Financed Facilities and does not offer any assurances that the Bond-Financed Facilities will be suitable for the Corporation’s purposes or needs or that the proceeds derived from the sale of the Bonds will be sufficient to pay in full all Acquisition Costs and Costs of Issuance.

 

(b)           If the proceeds derived from the sale of the Bonds are insufficient to pay in full all Acquisition Costs and Costs of Issuance, the Corporation shall complete the acquisition and construction of the Bond-Financed Facilities and pay any remaining Issuance Costs at its own expense.

 

SECTION 3.3

Remedies Against Contractors, etc.

 

If any vendor, contractor or subcontractor shall default under any contract or purchase order in connection with the acquisition or construction of the Bond-Financed Facilities, the Board shall follow the written instructions of, and shall cooperate in good faith with, the Corporation in the pursuit of any remedies that may be available under the circumstances.  Upon the written request of the Corporation, the Board shall assign to the Corporation all rights of the Board under any such contract or purchase order and the Corporation may, in its own name or in the name of the Board, pursue any such remedies.

 

SECTION 3.4

Completion of the Bond-Financed Facilities

 

(a)           The completion of the Bond-Financed Facilities shall be evidenced by a certificate signed by an Authorized Corporation Representative stating that:

 

 

(2)           all amounts due for labor, materials, supplies and other costs incurred in connection with the acquisition and construction of the Bond-Financed Facilities have been paid.

 

(b)           After the delivery of the aforesaid certificate to the Trustee, any money then remaining in the Acquisition Fund shall be applied as provided in the Indenture.

 

 

 

SECTION 4.1

Loan Term

 

The term of this Loan Agreement shall begin on the date of the delivery of the Bonds and, unless renewed and extended in accordance with the terms of this Loan Agreement, shall continue until midnight of December 1, 2035.

 

SECTION 4.2

Basic Loan Payments

 

(a)           The Corporation shall make payments (“Basic Loan Payments”) to the Trustee, for the account of the Board, at times and in amounts as follows:

 

(1)           on or before the last Business Day before each Bond Payment Date, an amount sufficient to pay all Debt Service due on the Bonds due and payable on such Bond Payment Date;

 

(2)           on or before the last Business Day prior to each date fixed for the redemption of Bonds (other than a scheduled mandatory redemption date, for which Basic Loan Payments are required pursuant to Section 4.2(a)(1) above), an amount equal to the redemption price of Bonds to be redeemed on such date; and

 

(3)           Prior to 12:00 noon on each Tender Date, the Corporation shall pay to the Trustee (or to the Purchaser Agent with respect to Bonds in Direct Purchase Mode) an amount equal to the Purchase Price of Bonds to be tendered for purchase on such Tender Date.  Such payments shall be made in funds immediately available at the Office of the Trustee (or of the Purchaser Agent for Bonds in Direct Purchase Mode) on the related Tender Date.

 

(b)           The Corporation shall receive a credit against the Basic Loan Payments as follows:

 

(1)           Investment income and profits deposited or retained in the Debt Service Fund shall be credited against monthly Basic Loan Payments due after receipt of such income and profits as directed by the Corporation.

 

(2)           Remarketing Proceeds in the Bond Purchase Fund on any Tender Date shall be credited against the related Basic Loan Payment due on such Tender Date.

 

(3)           For Bonds secured by a Letter of Credit, money received by the Trustee from a draw on the Letter of Credit with respect to Debt Service due on the related Bond Payment Date shall be credited against the Basic Loan Payment due on such Bond Payment Date.

 

(4)           Money received by the Trustee from a draw on the Letter of Credit with respect to the Purchase Price of Tendered Bonds due on any Tender Date shall be credited against the related Additional Loan Payment due on such Tender Date.

 

(5)           Any other money held by the Trustee and available, under the terms of the Indenture and this Loan Agreement, for the payment of Debt Service on the Bonds shall be credited against Basic Loan Payments as directed by the Corporation.  Such directions must be consistent with any mandatory provision of the Indenture and this Loan Agreement with respect to the required use of such money.

 

(c)           All Basic Loan Payments shall be made in funds immediately available at the Office of the Trustee on the due date of such Payments.

 

(d)           The Corporation acknowledges that (1) Basic Loan Payments required by this Section must be sufficient to pay all Debt Service due and payable on the Bonds as the same matures or comes due and (2) money drawn under the Letter of Credit may not be used to pay Debt Service on Obligor Bonds or Bonds in Direct Purchase Mode.  If on any Bond Payment Date the amount on deposit in the Debt Service Fund is not sufficient to pay Debt Service on the Bonds due and payable on such Date, the Corporation shall immediately deposit the amount of such deficiency in the Debt Service Fund.

 

(e)           For Bonds secured by a Letter of Credit, money on deposit in the Debt Service Fund may be used to reimburse the Bank for draws on the Letter of Credit to pay Debt Service on the Bonds, as provided in Section 8.1 of the Indenture.

 

(f)           Notwithstanding any other provision herein to the contrary, with respect to Bonds in Direct Purchase Mode, the Corporation shall make all payments of Debt Service for such Bonds directly to the Purchaser Agent (as opposed to the Trustee) by wire transfer or other payment arrangements to which the Corporation and the Purchaser Agent shall agree.

 

SECTION 4.3

Additional Loan Payments

 

(a)           The Corporation shall make additional payments (“Additional Loan Payments,” and together with the Basic Loan Payments and all other payments by the Corporation pursuant to this Loan Agreement, the “Loan Payments”) as follows:

 

(1)           Within 10 days after receipt by the Corporation of an invoice therefor, the Corporation shall pay to the Trustee (A) the acceptance fee of the Trustee, (B) the normal fees, charges and expenses of the Trustee, and (C) any amount to which the Trustee may be entitled under Section 12.7 of the Indenture.

 

(2)           Within 10 days after receipt by the Corporation of an invoice therefor, the Corporation shall pay to Board the reasonable expenses of the Board incurred (A) at the request of the Corporation, (B) in the performance of the Board’s duties under any of the Bond Documents, (C) in connection with any litigation which may at any time be instituted involving the Bond-Financed Facilities or the Bond Documents, or (D) in the pursuit of any remedies under the Bond Documents.

 

(3)           The Corporation shall pay to the Remarketing Agent the fees and expenses due in accordance with the applicable agreement appointing the Remarketing Agent to serve in such capacity.

 

 

(c)           Money on deposit in the Bond Purchase Fund may be used to reimburse the Bank for amounts due to the Bank under the Credit Agreement, as provided in Section 8.2 of the Indenture.

 

SECTION 4.4

Overdue Payments

 

Any overdue Basic Loan Payment shall bear interest from the related Bond Payment Date until paid at the Post-Default Rate ford overdue Debt Service payments.  Any overdue Additional Loan Payment shall bear interest from the date due until paid at the Post-Default Rate for such Additional Loan Payments specified in the Indenture.

 

SECTION 4.5

Unconditional Obligation of the Corporation

 

The Corporation’s obligation to make the payments required by this Loan Agreement and to perform and observe the other agreements and covenants on its part herein contained shall be absolute and unconditional, irrespective of any rights of set-off, recoupment or counterclaim it might otherwise have against the Board or any other Financing Participant.  The Corporation will not suspend or discontinue any such Loan Payment or fail to perform and observe any of its other agreements and covenants contained herein or terminate this Loan Agreement for any cause whatsoever, including, without limiting the generality of the foregoing, (a) failure to complete the Bond-Financed Facilities, (b) any acts or circumstances that may constitute an eviction or constructive eviction, (c) failure of consideration or commercial frust ration of purpose, (d) the invalidity of any provision of this Loan Agreement, (e) any damage to or destruction of the Bond-Financed Facilities or any part thereof, (f) the taking by eminent domain of title to, or the use of, all or any part of the Bond-Financed Facilities, (g) any change in the laws or regulations of the United States of America, the State of Tennessee or any other governmental authority, or (h) any failure of any of the Financing Participants to perform and observe any agreement or covenant, whether express or implied, to be performed or observed by them under any of the Bond Documents.

 

SECTION 4.6

Execution and Assignment of Notes

 

(a)           As evidence of the Corporation’s obligations to make the Basic Loan Payments with respect to the Bonds, the Corporation shall execute and deliver to the Board from time to time one or more promissory notes in substantially the form attached as Exhibit B to this Loan Agreement (the “Note”), as follows:

 

(1)           On the date of initial delivery of the Bonds in Direct Purchase Mode and of the related Note, pursuant to this Loan Agreement and the endorsement included within the Note, the Board will assign and endorse its rights under such Note to the Purchaser Agent.

 

(2)           If (A) the Purchaser(s) of the Bonds designate a new Purchaser Agent in accordance with the Indenture, whether or not in connection with the commencement of a new Direct Purchase Mode or Direct Purchase Rate Period, or (B) the Bonds are Converted from another Interest Rate Mode to Direct Purchase Mode, the Corporation shall execute and deliver to the Board a new Note in order to evidence the Corporation’s obligations to make Basic Loan Payments with respect to the Bonds, after giving effect to such designation or Conversion, and

 

 

 

(3)           On any Conversion Date on which the Bonds are Converted from Direct Purchase Mode to Weekly Rate Mode or Term Rate Mode, the Corporation shall execute and deliver to the Board a new Note in order to evidence the Corporation’s obligations to make Basic Loan Payments with respect to the Bonds, after giving effect to such Conversion, and pursuant to this Loan Agreement and the endorsement included within the Note, the Board will assign and endorse its rights under such Note to the Trustee.

 

(b)           The Corporation acknowledges that the occurrence of a Loan Default under Section 7.1 shall constitute a default under a Note and that if any such Loan Default exists, the Purchaser Agent or Trustee to which such Note is assigned or endorsed shall be entitled to exercise all rights and remedies afforded by the Indenture and Loan Agreement with respect to such Note.

 

(c)           Any increase in the Outstanding Principal Amount of the Note as the result of additional Advances with respect to the related Bond, as described in Section 2.2 of this Loan Agreement, shall be recorded on the Note by the Purchaser Agent or Trustee, as the case may be; provided, however, that failure of the Purchaser Agent or Trustee to record any Advance shall not in any way compromise, reduce or eliminate in any way the Corporation’s absolute obligations under this Loan Agreement with respect to the full Outstanding Principal Amount of the Bonds or the Notes, based upon the actual amount of proceeds loaned by the Board to the Corporation with respect thereto.

 

SECTION 4.7

Rights of Bank Under Bank Security Agreement

 

The Board and the Corporation acknowledge that a Bank Security Agreement will create certain rights in favor of the Bank with respect to the Bond-Financed Facilities, including without limitation rights relating to maintenance, alteration, disposition and insurance of the Bond-Financed Facilities, and rights to damage or condemnation proceeds.  Nothing contained in this Loan Agreement shall be construed to diminish or impair any such rights of the Bank.

 

SECTION 4.8

Rights of Purchaser under Direct Purchaser Security Documents

 

The Board and the Corporation acknowledge that a Direct Purchaser Security Agreement will create certain rights in favor of a Purchaser with respect to the Bond-Financed Facilities, including without limitation rights relating to maintenance, alteration, disposition and insurance of the Bond-Financed Facilities, and rights to damage or condemnation proceeds.  Nothing contained in this Loan Agreement shall be construed to diminish or impair any such rights of such Purchaser or Purchaser Agent.

 

 

 

SECTION 5.1

Assignment of Loan Agreement and Loan Payments by Board

 

(a)           Simultaneously with the delivery of this Loan Agreement, the Board shall, pursuant to the Indenture, assign and pledge to the Trustee all right, title and interest of the Board in and to the Loan Payments and the Loan Agreement.  The Corporation hereby consents to such assignment and pledge.

 

(b)           Until all Indenture Indebtedness has been Fully Paid, the Trustee may exercise all rights and remedies herein accorded to the Board, and any references herein to the Board shall be deemed, with the necessary changes in detail, to include the Trustee; provided, however, that the Board shall retain the rights to indemnification and reimbursement of expenses granted to it by this Loan Agreement and provided, further, that:

 

(1)           For Bonds in Direct Payment Mode, all rights and remedies granted to the Trustee under this Loan Agreement shall be granted to and exercisable by the Purchaser Agent, and the Trustee shall have no rights or remedies hereunder, except those as the Purchaser Agent may direct the Trustee to exercise on its behalf; and

 

(2)           For Bonds secured by a Letter of Credit, the Trustee will not exercise any of its remedies under this Loan Agreement without the prior written consent of the Bank (subject to the provisions of Section 15.7 of the Indenture).

 

SECTION 5.2

Redemption of Bonds

 

(a)           The Board will cause the Trustee to redeem any or all of the Bonds in accordance with the mandatory redemption provisions of the Bonds without any direction from or consent by the Corporation.

 

(b)           If no Loan Default exists, (1) any right of optional redemption with respect to the Bonds may be exercised only upon the written direction of the Corporation and (2) the Corporation may, on behalf of the Board, direct the Trustee to effect an optional redemption of Bonds.  The Corporation shall deliver to the Board a copy of any such direction.  The Board will cooperate with the Corporation in good faith to effect any such optional redemption so directed.

 

(c)           Notwithstanding the provisions of Section 5.2(b), the Corporation shall not be entitled to exercise any right of optional redemption with respect to Bonds in Direct Purchase Mode unless (1) such Bonds, according to their terms, are subject to optional redemption in accordance with the directions provided by the Corporation, or (2) the Corporation shall have delivered to the Trustee the prior written consent of the Purchaser of the Bonds being optionally redeemed.

 

SECTION 5.3

Amendment of Bond Documents

 

The Board will not cause or permit the amendment of the Bond Documents without the prior written consent of the Corporation.

 

SECTION 5.4

The Indenture Funds

 

(a)           If no Loan Default exists, the Board shall cause any money held as part of an Indenture Fund to be invested or reinvested by the Trustee in accordance with the terms of the Indenture and the instructions of the Corporation.

 

(b)           The Corporation shall be solely responsible for (1) determining that any such investment of Indenture Funds under the Indenture complies with the arbitrage limitations imposed by Section 148 of the Internal Revenue Code, and (2) calculating the amount of, and making payment of, any rebate due to the United States under Section 148(f) of the Internal Revenue Code.

 

(c)           As security for the performance by the Corporation of the covenants hereunder, the Corporation hereby assigns and pledges to the Board, and grants to the Board a security interest in, all

 

 

SECTION 5.5

Effect of Full Payment of Indenture Indebtedness

 

(a)           After the Indenture Indebtedness is Fully Paid, all references in this Loan Agreement to the Bonds, the Indenture and the Trustee shall be ineffective and neither the Trustee nor the Holders of the Bonds shall thereafter have any rights hereunder, except those rights that shall have theretofore vested.

 

(b)           After all Indenture Indebtedness is Fully Paid, any money or investments remaining in the Indenture Funds shall be delivered to the Corporation.

 

 

 

SECTION 6.1

General Representations

 

The Corporation makes the following representations and warranties as the basis for the undertakings on its part herein contained:

 

(a)           It is a corporation duly organized under the laws of the state of its organization and is not in default under any of the provisions contained in its articles of incorporation or bylaws or in the laws of the state of its organization.

 

(b)           It has the power to consummate the transactions contemplated by the Bond Documents to which it is a party.

 

(c)           By proper corporate action it has duly authorized the execution and delivery of the Bond Documents to which it is a party and the consummation of the transactions contemplated therein.

 

(d)           It has obtained all consents, approvals, authorizations and orders of governmental authorities that are required to be obtained by it as a condition to the execution and delivery of the Bond Documents to which it is a party.

 

(e)           The execution and delivery by it of the Bond Documents to which it is a party and the consummation by it of the transactions contemplated therein will not (1) conflict with, be in violation of, or constitute (upon notice or lapse of time or both) a default under its charter or bylaws, or any agreement, instrument, order or judgment to which it is a party or is subject, or (2) result in or require the creation or imposition of any lien of any nature upon or with respect to any of its properties now owned or hereafter acquired, except as contemplated by the Bond Documents.

 

(f)           The Bond Documents to which it is a party constitute legal, valid and binding obligations and are enforceable against it in accordance with the terms of such instruments, except as enforcement thereof may be limited by (1) bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors’ rights and (2) general principles of equity, including the exercise of judicial discretion in appropriate cases.

 

 

SECTION 6.2

Eligibility of Bond-Financed Facilities for Financing

 

(a)           The Corporation makes the following representations and warranties regarding the eligibility of the Bond-Financed Facilities for financing under the Enabling Law:

 

(1)           The Board’s issuance of the Bonds, and the Board’s loan of the proceeds of the Bonds to the Corporation in order to provide financing for the Bond-Financed Facilities will help secure to the citizens of the State of Tennessee the benefits of a strengthening economy from increased economic development by inducing industrial enterprises to locate, expand or improve their operations in the State or to remain in the State.

 

(2)           The Corporation intends to operate the Bond-Financed Facilities as a “Project” as defined in the Enabling Law.

 

(3)           The Bond-Financed Facilities are located wholly within Bradley County, Tennessee.

 

(b)           So long as this Loan Agreement is in effect, the Corporation will not make any use of the Bond-Financed Facilities prohibited by the terms of the Enabling Law.

 

SECTION 6.3

Corporate Existence

 

(a)           The Corporation will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises.

 

(b)           The Corporation may not consolidate with or merge into any other corporation or transfer its property substantially as an entirety to any person unless:

 

(1)           the corporation formed by such consolidation or into which the Corporation is merged or the person which acquires by conveyance or transfer the Corporation’s property substantially as an entirety (the “Successor”) shall execute and deliver to the Board and the Trustee an instrument in form acceptable to the Board and the Trustee containing an assumption by such Successor of the performance and observance of every covenant and condition to be performed or observed by the Corporation under this Loan Agreement, the other Bond Documents, the Tax Certificate and Agreement, and to the extent applicable, any Credit Agreement, Bank Security Document or Direct Purchaser Security Document to which the Corporation is a party (all of the foregoing, collectivel y, the “Assumed Documents”);

 

(2)           immediately after giving effect to such transaction, no Loan Default, or any event which upon notice or lapse of time or both would constitute such a Loan Default, shall have occurred and be continuing;

 

(3)           the Corporation shall have delivered to the Board and the Trustee a Favorable Tax Opinion dated the effective date of such consolidation or merger;

 

(4)           either the Corporation or the Successor, within ten (10) days after execution thereof, shall have delivered to the Board and the Trustee a true and complete copy of the instrument of dissolution, liquidation, disposition, consolidation or merger;

 

(5)           neither the validity nor the enforceability of the Bonds or any other Assumed Document is adversely affected by the dissolution, liquidation, disposition, consolidation or merger;

 

(6)           no rating on the Bonds, if the Bonds are then rated, is reduced or withdrawn as a result of the dissolution, liquidation, disposition, consolidation or merger; and

 

(7)           the Project remains as described in this Loan Agreement and in compliance with the Enabling Act;

 

(8)           any Successor shall be qualified to do business in the State of Tennessee and shall continue to be so qualified throughout the term of this Loan Agreement;

 

(9)           the Board shall have delivered to the Trustee a certificate acknowledging receipt of all documents, information and materials required by this Section 6.3; and

 

(10)           the Corporation shall have delivered to the Board and the Trustee a certificate executed by an Authorized Corporation Representative and an Opinion of Counsel, each of which shall be dated the effective date of such consolidation, merger, conveyance or transfer and shall state that such consolidation, merger, conveyance or transfer complies with all requirements of this Section and that all conditions precedent herein provided relating to such transactions shall have been complied with.

 

(c)           Upon any consolidation or merger or any conveyance or transfer of the Corporation’s property substantially as an entirety in accordance with this Section, the Successor shall succeed to, and be substituted for, and may exercise every right and power of, the Corporation under this Loan Agreement with the same effect as if such Successor had been named as the Corporation herein.

 

SECTION 6.4

Inspection of Records

 

The Corporation will at any and all times, upon the written request of the Board or the Trustee, permit the Board or the Trustee by their representatives to inspect the Bond-Financed Facilities and any books, records, reports and other papers of the Corporation relating to the Bond-Financed Facilities.

 

SECTION 6.5

Advances by Board or Trustee

 

If the Corporation shall fail to perform any of its covenants in this Loan Agreement, the Board or the Trustee may, at any time and from time to time, after written notice to the Corporation if no Loan Default exists, make advances to effect performance of any such covenant on behalf of the Corporation.  Any money so advanced by the Board or the Trustee, together with interest at the Post-Default Rate, shall be repaid upon demand.

 

SECTION 6.6

Indemnity of Board and Trustee

 

(a)           To the extent permitted by law, the Corporation agrees to indemnify the Board, the Trustee, and their respective members, directors, officers, employees, attorneys, and agents for, and hold each of them harmless against, any loss, liability or expense (including reasonable attorneys’ fees) incurred without bad faith or willful misconduct on their part, arising out of or in connection with the issuance of the Bonds, the acceptance of their duties and responsibilities under the Bond Documents, or their performance or observance of any agreement or covenant on their part to be observed or performed under the Bond Documents, including without limitation (1) the acquisition or construction of, or other

 

 

(b)           The covenant of indemnity by the Corporation contained in this Section shall survive the termination of this Loan Agreement.

 

SECTION 6.7

Compliance with Tax Certificate and Agreement

 

The Board and the Corporation will comply with the covenants and agreements on their part contained in the Tax Certificate and Agreement.

 

SECTION 6.8

Compliance with Continuing Disclosure Agreement

 

The Corporation will comply with the covenants and agreements on its part contained in any Continuing Disclosure Agreement executed in connection with the Bonds.  As of the date of initial delivery of the Bonds, no Continuing Disclosure Agreement is in effect.

 

SECTION 6.9

Covenants to Purchaser during Direct Purchase Mode

 

While Bonds are in Direct Purchase Mode, the Corporation may enter into covenants for the exclusive benefit of the Purchaser of such Bonds (and not for the benefit of the Board, the Trustee or any other party).  Such covenants shall be contained separately in a schedule to this Loan Agreement or pursuant to a separate agreement between the Corporation and the Purchaser.  The Corporation and the Purchaser may amend such separate schedule or agreement at any time without notice to or the consent of any other party.

 

 

 

SECTION 7.1

Events of Default

 

Any one or more of the following shall constitute an event of default (a “Loan Default”) under this Loan Agreement (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(a)           default in the payment of (1) any Basic Loan Payment when such Basic Loan Payment becomes due and payable or (2) any Additional Loan Payment with respect to the Purchase Price of Tendered Bonds when such Additional Loan Payment becomes due and payable; or

 

(b)           an Act of Bankruptcy by the Corporation; or

 

(c)           default in the performance, or breach, of any covenant or warranty of the Corporation in this Loan Agreement (other than a covenant or warranty, a default in the performance or breach of which is elsewhere in this Section specifically dealt with), and the continuance of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Corporation and the Bank by the Board or by the Trustee a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “notice of default” hereunder; or

 

(d)           the occurrence of an event of default, as therein defined, under the Indenture, and the expiration of the applicable grace period, if any, specified therein.

 

Absent a change in Governmental Requirements applicable to Continuing Disclosure Agreements, any Continuing Disclosure Agreement executed in connection with the Bonds will contain the exclusive remedies for breach by the Corporation of the covenants on its part contained in such agreement, and no such breach shall constitute a Loan Default or an event of default under any other Bond Document.

 

SECTION 7.2

Remedies on Default

 

If a Loan Default occurs and is continuing, the Board (or the Trustee, as provided in the Indenture) may exercise any of the following remedies:

 

(a)           declare all Basic Loan Payments to be immediately due and payable in an amount not to exceed the principal amount of all Outstanding Bonds, plus the redemption premium (if any) payable with respect thereto, plus the interest accrued thereon to the date of such declaration;

 

(b)           declare the principal of the Pledged Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Loan Agreement or in the Pledged Note to the contrary notwithstanding;

 

(c)           declare all Additional Loan Payments to be due and payable immediately; and

 

(d)           take whatever legal proceedings may appear necessary or desirable to collect the Loan Payments then due, whether by declaration or otherwise, or to enforce any obligation or covenant or agreement of the Corporation under this Loan Agreement, under a Bank Security Document, a Direct Purchaser Security Document or under applicable law.

 

SECTION 7.3

No Remedy Exclusive

 

No remedy herein conferred upon or reserved to the Board or the Trustee 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 Loan Agreement or now or hereafter existing at law or in equity or by statute.  No delay or omission to exercise any right or power accruing upon any 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.

 

SECTION 7.4

Agreement to Pay Attorneys' Fees and Expenses

 

If the Corporation should default under any of the provisions of this Loan Agreement and the Board or the Trustee should employ attorneys or incur other expenses for the collection of payments due under this Loan Agreement or the enforcement of performance or observance of any agreement or covenant on the part of the Corporation herein contained, the Corporation will on demand therefor pay to

 

 

SECTION 7.5

No Additional Waiver Implied by One Waiver

 

In the event any agreement contained in this Loan 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.

 

SECTION 7.6

Remedies Subject to Applicable Law

 

All rights, remedies and powers provided by this Article may be exercised only to the extent the exercise thereof does not violate any applicable provision of law in the premises, and all the provisions of this Article are intended to be subject to all applicable mandatory provisions of law which may be controlling in the premises and to be limited to the extent necessary so that they will not render this Loan Agreement invalid or unenforceable.

 

SECTION 7.7

Purchaser Agent’s Rights During Direct Purchase Mode

 

Notwithstanding any other provision of this Loan Agreement to the contrary, with respect to all Notes issued with respect to Bonds the Direct Purchase Mode, all rights and remedies granted to the Trustee under this Loan Agreement with respect to such Notes shall be granted to and exercisable by the Purchaser Agent, and the Board and Trustee shall have no rights or remedies under this Loan Agreement, except those that the Purchaser Agent may direct the Board or Trustee to exercise on its behalf.

 

 

 

SECTION 8.1

Board’s Liabilities Limited

 

(a)           The covenants and agreements contained in this Loan Agreement and in any contract, purchase order or other agreement entered into pursuant to this Loan Agreement shall never constitute or give rise to a personal or pecuniary liability or charge against the general credit of the Board, and in the event of a breach of any such covenant or agreement, no personal or pecuniary liability or charge payable directly or indirectly from the general assets or revenues of the Board shall arise therefrom.  Nothing contained in this Section, however, shall relieve the Board from the observance and performance of the covenants and agreements on its part contained herein.

 

(b)           No recourse under or upon any covenant or agreement of this Loan Agreement or of any contract or other agreement entered into pursuant to this Loan Agreement shall be had against any past, present or future incorporator, officer or member of the governing body of the Board, or of any successor corporation, either directly or through the Board, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Loan Agreement is solely a corporate obligation, and that no personal liability whatever shall attach to, or is or shall be incurred by, any incorporator, officer or member of the governing body of the Board or any successor corporation, or any of them, under or by reason of the covenants or agreements contained in this Loan Agreement.

 

(c)           The liability of the Board for the payment of any money due under any contract or purchase order entered into by it, or for any other costs incurred in connection with the acquisition,

 

 

SECTION 8.2

Corporate Existence of Board

 

The Board shall not consolidate with or merge into any other corporation or transfer its property substantially as an entirety, except as provided in Section 10.6 of the Indenture.  Upon any consolidation or merger or any conveyance or transfer of the Board's property substantially as an entirety in accordance with such Section, the surviving person shall succeed to, and be substituted for, and may exercise every right and power of, the Board under this Loan Agreement with the same effect as if such surviving person had been named as the Board herein.

 

SECTION 8.3

Notices

 

(a)           Any request, demand, authorization, direction, notice, consent, or other document provided or permitted by this Loan Agreement to be made upon, given or furnished to, or filed with, the Board, the Corporation, the Trustee, the Bank or the Purchaser Agent must (except as otherwise expressly provided in this Loan Agreement) be in writing and be delivered by one of the following methods:  (1) by personal delivery at the hand delivery address specified pursuant to Section 17.1 of the Indenture, (2) by first-class, registered or certified mail, postage prepaid, addressed as specified pursuant to Section 17.1 of the Indenture, or (3) if facsimile transmission facilities for such party are identified in Section 17.1 of the Indenture or pursuant to a separate notic e from such party, sent by facsimile transmission to the number specified in Section 17.1 of the Indenture or in such notice.  Any of such parties may change the address for receiving any such notice or other document by giving notice of the change to the other parties named in this Section.

 

(b)           Any such notice or other document shall be deemed delivered when actually received by the party to whom directed (or, if such party is not an individual, to an officer, partner or other legal representative of the party) at the address or number specified pursuant to this Section, or, if sent by mail, 3 days after such notice or document is deposited in the United States mail, addressed as provided above.

 

SECTION 8.4

Successors and Assigns

 

All covenants and agreements in this Loan Agreement by the Board or the Corporation shall bind their respective successors and assigns, whether so expressed or not.

 

SECTION 8.5

Benefits of Loan Agreement

 

Nothing in this Loan Agreement, express or implied, shall give to any person, other than the parties hereto and their successors hereunder, the Trustee, the Holders or Purchasers of Bonds and the Bank, any benefit or any legal or equitable right, remedy or claim under this Loan Agreement.

 

IN WITNESS WHEREOF, the Board and the Corporation have caused this instrument to be duly executed and their respective corporate seals to be hereunto affixed and attested.

 

 

	THE INDUSTRIAL DEVELOPMENT BOARD OF
	THE COUNTY OF BRADLEY AND THE CITY OF
	CLEVELAND, TENNESSEE
	By:	/s/ Ross H. Tarver
		Chairman of its Board of Directors
		[S E A L]
	Attest:
	/s/ George N. McCoin
	Its Secretary

 

I, Tamara Randolph, a Notary Public in and for said County in said State, hereby certify that Ross Tarver, whose name as Chairman of the Board of Directors of The Industrial Development Board of the County of Bradley and the City of Cleveland, Tennessee, a Tennessee public corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

 

Given under my hand and official seal this 21st day of December, 2010.

 

 

(SEAL)		/s/ Tamara Randolph
		Notary Public
		My Commission Expires:  11/23/13

 

Mark W. Smith

Miller & Martin PLLC

1000 Volunteer Building

832 Georgia Avenue

Chattanooga, Tennessee   ###-###-####

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I, Tana E. Fox, a Notary Public in and for said County in said State, hereby certify that Stephen C. Curley, whose name as Vice President and Treasurer of Olin Corporation, a Virginia corporation, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.

 

Given under my hand and official seal this 17th day of December, 2010.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Bond-Financed Facilities. The Bond-Financed Facilities subject to this Loan Agreement include the construction of buildings and improvements, the rehabilitation of existing buildings, and the acquisition of machinery and equipment in Bradley County, Tennessee in connection with the Corporation’s chlor-alkali and related manufacturing operations in Charleston, Tennessee.

 

 

EXHIBIT B

 

 

 

$41,000,000

 

 

OLIN CORPORATION, a Virginia corporation (the “Corporation”), for value received, hereby promises to pay to THE INDUSTRIAL DEVELOPMENT BOARD OF THE COUNTY OF BRADLEY AND THE CITY OF CLEVELAND, TENNESSEE, a Tennessee public corporation (the “Board”), or its assigns, amounts corresponding to the Basic Loan Payments as and when due under the Loan Agreement described below with respect to the Bonds described below, as provided in Section 4.2 of such Loan Agreement.

 

The Board has issued its $41,000,000 Recovery Zone Facility Revenue Bonds (Olin Corporation Project), Series 2010 (the “Bonds”) for the benefit of the Corporation pursuant to a Trust Indenture dated as of December 27, 2010 (as hereafter supplemented, the “Trust Indenture”) between the Board and U. S. Bank National Association, a national banking association, as trustee (the “Trustee”).  Capitalized terms not otherwise defined herein shall have the meanings assigned in the Trust Indenture.

 

Pursuant to a Loan Agreement dated as of December 27, 2010 (as hereafter supplemented, the “Loan Agreement”) between the Board and the Corporation, the Board has loaned the proceeds of the Bonds to the Corporation, and the Corporation has agreed to make loan payments at times and in amounts sufficient to pay principal, premium (if any) and interest on the Bonds and to pay the Purchase Price of Bonds tendered in accordance with the optional or mandatory tender provisions of the Trust Indenture.  This note (the “Note”) is issued in order to evidence the Corporation’s payment obligations under the Loan Agreement with respect to the Bonds.  Pursuant to the Trust Indenture and the endorsement below, the Board has assigned to the [Trustee ] its rights under the Loan Agreement and this note.

 

This note is one of a series of notes (collectively, the “Notes’) authorized to be issued under the Loan Agreement as evidence of the Corporation’s obligations with respect to the Bonds.

 

The payments due on this note shall correspond to the Basic Loan Payments due under the Loan Agreement with respect to the Bonds.  The terms of payment of principal, premium and interest with respect to the Bonds (and the corresponding Basic Loan Payments under the Loan Agreement with respect to the Bonds) are hereby adopted by reference and made a part of this note as if set out herein in full.  The outstanding principal amount of the Bonds shall be deemed to be the outstanding principal amount of this note.

 

This note and any of the other Notes in this series may be modified, amended, cancelled or replaced only in accordance with the terms and conditions of the Trust Indenture and Loan Agreement.

 

In the manner and with the effect provided in the Trust Indenture, the Notes shall be subject to redemption prior to maturity at the times and in the amounts specified for Bonds issued under the Trust Indenture.  The Notes shall be deemed “fully paid” to the same extent that the Bonds are deemed “fully paid” under the terms of the Trust Indenture.  The Notes that have been redeemed prior to maturity or deemed “fully paid” shall cease to be entitled to the benefits of the Trust Indenture and shall cease to bear interest from and after the date of such redemption or provision for payment.

 

If an Event of Default shall occur under the Trust Indenture, the principal of all Notes then outstanding may become or be declared due and payable in the manner and with the effect provided in the Trust Indenture.

 

The holders of the Notes shall have no right to enforce the provisions of the Trust Indenture, or to institute any action to enforce the covenants therein, or to take any action with respect to any default thereunder, or to institute, appear in or defend any suit or other proceeding with respect thereto, except as provided in the Trust Indenture.

 

This note shall be registered on the register to be maintained by the Corporation for that purpose at the principal office of the [Trustee], and this note shall be transferable only upon said register at said office by the registered owner or by his duly authorized attorney.  Such transfer shall be without charge to the holder hereof, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the holder requesting such transfer as a condition precedent to the exercise of such privilege.  Upon any such transfer, the Corporation shall execute and the Board shall endorse and deliver in exchange for this note a new note registered in the name of the transferee.

 

The Corporation, the Trustee, and any Note registrar may deem and treat the person in whose name this note is registered as the absolute owner hereof for all purposes; and none of the Corporation, the Trustee or any Note registrar shall be affected by any notice to the contrary.  All payments made to the registered owner hereof shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable on this note.

 

Copies of the Trust Indenture, the Loan Agreement and the Bonds are on file at the principal office of the Trustee.

 

 

IN WITNESS WHEREOF, the Corporation has executed and delivered this note in accordance with the Loan Agreement.

 

Dated:  December 27, 2010.

 

 

			OLIN CORPORATION
Attest:			By:
Name:			Name:
Title:			Title:
[S E A L]

 

 

PAY TO THE ORDER OF [TRUSTEE] IN ITS CAPACITY AS [TRUSTEE] UNDER THE TRUST INDENTURE REFERENCE HEREIN, WITHOUT RECOURSE:

 

 

 

 

 

 

 

Amount of Advance	Date of Advance	Outstanding Principal Amount	Signature of Payee