Exhibit 4.16
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CITY OF WEIRTON, WEST VIRGINIA
AND
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as Trustee
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INDENTURE OF TRUST
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Dated as of November 1, 1989
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TABLE OF CONTENTS
(This Table of Contents is not a part of the Indenture
of Trust and is only for convenience of reference.)
PAGE
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PARTIES ................................................................................................... 1
RECITALS ................................................................................................... 1
GRANTING CLAUSES................................................................................................ 2
ARTICLE I DEFINITIONS.............................................................................3
SECTION 1.01. DEFINITION OF TERMS.....................................................................3
ARTICLE II AUTHORIZATION AND ISSUANCE OF BONDS.....................................................9
SECTION 2.01. AUTHORIZED AMOUNT OF BONDS..............................................................9
SECTION 2.02. PURPOSES FOR WHICH BONDS MAY BE ISSUED..................................................9
SECTION 2.03. ISSUANCE OF SERIES 1989 BONDS...........................................................9
SECTION 2.04. EXECUTION; LIMITED OBLIGATIONS.........................................................10
SECTION 2.05. AUTHENTICATION.........................................................................11
SECTION 2.06. FORM OF BONDS..........................................................................11
SECTION 2.07. TEMPORARY BONDS........................................................................11
SECTION 2.08. DELIVERY OF THE SERIES 1989 BONDS......................................................11
SECTION 2.09. MUTILATED, LOST, STOLEN OR DESTROYED BONDS.............................................12
SECTION 2.10. INTERCHANGEABILITY OF BONDS............................................................13
SECTION 2.11. NEGOTIABILITY OF BONDS AND REGISTRATION BOOKS..........................................13
SECTION 2.12. TRANSFER OF BONDS......................................................................14
SECTION 2.13. REGULATIONS WITH RESPECT TO EXCHANGES AND TRANSFERS....................................14
SECTION 2.14. ADDITIONAL BONDS.......................................................................14
ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY; TENDER OPTION RIGHTS OF BONDHOLDERS...........................16
SECTION 3.01. MANDATORY REDEMPTION; EXTRAORDINARY REDEMPTION;
OPTIONAL REDEMPTION....................................................................16
ARTICLE IV FUNDS, BOND PROCEEDS, REVENUES AND APPLICATION
THEREOF................................................................................25
ARTICLE V GENERAL COVENANTS AND PROVISIONS.......................................................28
ARTICLE VI DISCHARGE OF INDENTURE.................................................................31
(i)
ARTICLE VII DEFAULTS AND REMEDIES..................................................................33
ARTICLE VIII THE TRUSTEE............................................................................38
ARTICLE IX SUPPLEMENTAL INDENTURES................................................................44
ARTICLE X AMENDMENT OF AGREEMENT.................................................................47
ARTICLE XI MISCELLANEOUS..........................................................................48
Acknowledgments
EXHIBIT A - FORM OF BOND, CERTIFICATE OF AUTHENTICATION
INDENTURE OF TRUST
THIS INDENTURE OF TRUST (the "Indenture"), dated as of
November 1, 1989, is between the CITY OF WEIRTON, WEST VIRGINIA (the "Issuer"),
a public corporation and an incorporated municipality duly organized and
existing under the constitution and laws of the State of West Virginia, and
Pittsburgh National Bank (the "Trustee"), a banking association organized and
existing under and by virtue of the laws of the United States of America, with
its principal corporate trust office located at Pittsburgh, Pennsylvania, as
Trustee.
W I T N E S S E T H
WHEREAS, pursuant to and in accordance with the provisions of
The Industrial Development and Commercial Development Bond Act, Chapter 13,
Article 2C, West Virginia Code, as amended (the "Act"), by Resolution of the
City Council of the Issuer, and in furtherance of the purposes of the Act,
Issuer proposes to refund certain of its outstanding pollution control revenue
bonds (the "Prior Bonds") issued to finance (or refinance) the acquisition,
construction and installation of certain pollution control equipment which is
presently leased by the Issuer to, or owned by, Weirton Steel Corporation (the
"Company"); and
WHEREAS, the Issuer proposes to finance the cost of the
refunding of the Prior Bonds by the issuance of its pollution control revenue
bonds, (the "Series 1989 Bonds") under this Indenture of Trust; and
WHEREAS, the Issuer has undertaken to finance the refunding of
the Prior Bonds by loaning the proceeds from the sale of the Series 1989 Bonds
to the Company pursuant to a Loan Agreement (the "Agreement"), dated as of
November 1, 1989, between the Issuer and the Company providing for loan payments
from the Company to the Issuer sufficient to pay when due the principal of,
premium, if any, and interest on the Series 1989 Bonds and related expenses; and
WHEREAS, it has been determined that the estimated amount
..necessary to finance the cost of the refunding of the Prior Bonds will require
the issuance, sale and delivery of the Series 1989 Bonds in the aggregate
principal amount of $56,300,000, as hereinafter provided; and
WHEREAS, all things necessary to make the Series 1989 Bonds
when authenticated by the Trustee and issued as in this Indenture provided, the
valid, binding and legal obligations of the Issuer according to the import
thereof, and to constitute this Indenture a valid assignment and pledge of the
amounts pledged to the payment of the principal of, premium, if any, and
interest on the Series 1989 Bonds, and to constitute this Indenture a valid
assignment of the rights of the Issuer under the Agreement, have been done and
performed, and the creation, execution and delivery of this Indenture, and the
creation, execution and issuance of the Series 1989 Bonds, subject to the terms
hereof, have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH:
GRANTING CLAUSES
That the Issuer in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the purchase and
acceptance of the Series 1989 Bonds by the holders and owners thereof, and of
the sum of one dollar, lawful money of the United States of America, to it duly
paid by the Trustee at or before the execution and delivery of these presents,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, in order to secure the payment of the principal of, premium, if
any, and interest on the Series 1989 Bonds and any additional bonds issued in
accordance with the provisions of this Indenture (collectively, the "Bonds")
according to their tenor and effect and to secure the performance and observance
by the Issuer of all the covenants expressed or implied herein and in the Bonds,
does hereby assign and grant a security interest in the following (collectively,
the "Trust Estate") to Pittsburgh National Bank, Pittsburgh, Pennsylvania, as
Trustee, and its successors in trust and assigns forever, for the securing of
the performance of the obligations of the Issuer hereinafter set forth:
GRANTING CLAUSE FIRST
The Agreement, including all extensions and renewals of the
term thereof, if any, together with all right, title and interest of the Issuer
in and to the Agreement (except under Sections 4.2(b) and (c), 6.2 and 7.4
thereof), including, but not limited to, the present and continuing right to
make claim for, collect, receive and receipt for any of the sums, amounts,
income, revenues, issues and profits and any other sums of money payable or
receivable under the Agreement (except under Sections 4.2(b) and (c), 6.2 and
7.4 thereof), to bring actions and proceedings thereunder or for the enforcement
thereof (except for amounts payable under Sections 4.2(b) and (c), 6.2 and 7.4
thereof), and to do any and all other things which the Issuer under the
Agreement is or may become entitled to.
GRANTING CLAUSE SECOND
All moneys and securities from time to time held by the
Trustee under the terms of this Indenture, except for moneys deposited with or
paid to the Trustee for the redemption of particular Bonds, notice of the
redemption of which has been duly given.
GRANTING CLAUSE THIRD
Any and all other Property of every name and nature from time
to time hereafter by delivery or by writing of any kind conveyed, mortgaged,
pledged, assigned or transferred as and for additional security hereunder by the
Issuer or by anyone in its behalf or with its written consent in favor of the
Trustee, and the Trustee is hereby authorized to receive any and all such
Property at any and all times and to hold and apply the same subject to the
terms hereof.
TO HAVE AND TO HOLD all and singular the Trust Estate, whether
now owned or hereafter acquired, unto the Trustee and its respective successors
and assigns forever;
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IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and protection of all
present and future holders and owners of the Bonds, from time to time, issued
under and secured by this Indenture without privilege, priority or distinction
as to the lien or otherwise of any of the Bonds over any of the other Bonds;
PROVIDED, HOWEVER, that if the Issuer, its successors or
assigns shall well and truly pay, or cause to be paid, the principal of,
premium, if any, and interest on the Bonds due or to become due thereon, at the
times and in the manner set forth in the Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made on the Bonds as
required hereunder, or shall provide, as permitted herein, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon, and shall well and truly cause to be kept, performed and observed all
of its covenants and conditions pursuant to the terms of this Indenture, and
shall pay or cause to be paid to the Trustee all sums of money due or to become
due to it in accordance with the terms and provisions hereof, then upon the
final payment thereof this Indenture and the rights hereby granted shall cease,
determine and be void; otherwise this Indenture shall remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be issued,
authenticated and delivered and all said Property, rights and interests,
including, without limitation, the amounts payable under the Agreement and any
other amounts hereby assigned and pledged are to be dealt with and disposed of
under, upon and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as herein expressed, subject to the
limitations of Section 2.04 hereof, and the Issuer has agreed and covenanted and
does hereby agree and covenant with the Trustee and with the respective holders
and owners of the Bonds as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITION OF TERMS. The following words and
terms as used in this Indenture shall have the following meanings unless the
context or use indicates another or different meaning or intent:
"ACT" means The Industrial Development and Commercial
Development Bond Act, Chapter 13, Article 2C, West Virginia Code, as amended.
"ADDITIONAL BONDS" means bonds issued by the Issuer pursuant
to Section 2.14 of this Indenture in addition to the Series 1989 Bonds.
"AGREEMENT" means the Loan Agreement, dated as of November 1,
1989, by and between the Issuer and the Company, as the same may be amended
from-time to time.
"AUTHORIZED INVESTMENTS" means (i) obligations of the State or
the United States of America, (ii) obligations the principal of and interest on
which are fully guaranteed by the State or the United States of America, (iii)
obligations of any agency of the United States of America which may from time to
time be legally purchased by savings banks within the State as
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an investment of funds belonging to them or under their control, (iv)
certificates of deposit issued by, or time deposits with, any bank, trust
company or national banking association having a combined capital and surplus of
at least $50,000,000 (including the Trustee), (v) repurchase agreements fully
collateralized by obligations of the type specified in (i) and (ii) above
(including repurchase agreements with the Trustee as seller and repurchaser),
(vi) commercial or finance paper of any Person other than the Company or any
Related Person, rated P-1 by ▇▇▇▇▇'▇ Investors Service, Inc., or A-1 by Standard
& Poor's Corporation, or (vii) Eurodollar deposits or other obligations with the
London branches of United States or Japanese banks.
"AUTHORIZED REPRESENTATIVE" means, in the case of the Issuer,
the Mayor, Vice-Mayor or Clerk of the Issuer; in the case of the Company, its
president or any vice president, and, in the case of both, such additional
persons as, at the time, are designated to act in behalf of the Issuer or the
Company, as the case may be, by written certificate furnished to the Trustee,
the Issuer or Company, as the case may be, containing the specimen signature of
each such person and signed on behalf of (i) the Issuer by the Mayor, Vice-Mayor
or Clerk of the Issuer and (ii) the Company by its president or any vice
president.
"BOND" or "BONDS" means the Series 1989 Bonds and any
Additional Bonds, and any Bonds exchanged therefor in accordance with Section
2.09 of this Indenture.
"BOND COUNSEL" means the firm of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, New
York, New York, or any other attorney or firm of attorneys whose experience in
matters relating to the issuance of obligations by states and their political
subdivisions is nationally recognized.
"BOND FUND" means the fund so designated which is created by
Section 4.01 of this Indenture.
"BONDHOLDER" or "HOLDER" or "OWNER" means the registered owner
of any Bond as its name appears in the registration books of the Issuer
maintained by the Trustee as, bond registrar.
"BOND PAYMENT DATE" means any Interest Payment Date and each
date on which principal shall be payable on or with respect to any of the Bonds
according to their respective terms so long as any of the Bonds shall be
Outstanding.
"BOND PROCEEDS" means the amount, including accrued interest
and premium, if any, paid to the Issuer by the initial purchasers of the Series
1989 Bonds or any Additional Bonds, as the case may be, as the purchase price
thereof.
"BOND RESOLUTION" means the resolution of the Issuer
authorizing the issuance, execution, sale and delivery of the Series 1989 Bonds
and the execution and delivery of this Indenture, and the Agreement, as such
resolution may be amended or supplemented from time to time.
"BUSINESS DAY" means any day of the week other than a
Saturday, Sunday or legal holiday in The City of New York, New York, or the City
of Pittsburgh, Pennsylvania, or a day on which banking institutions in The City
of New York, New York, or the City of Pittsburgh, Pennsylvania, are authorized
by law to close.
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"CLOSING DATE" means the date of issuance and delivery by the
Issuer to the initial purchasers of the Series 1989 Bonds or any Additional
Bonds, as the case may be.
"CODE" means the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations.
"COMPANY" means (i) Weirton Steel Corporation and its
successors and assigns, and (ii) any surviving, resulting or transferee entity.
"CONDEMNATION" means the taking of title to, or the use of,
Property, or transfer in lieu thereof, under the exercise of the power of
eminent domain by any governmental entity or other Person acting under
governmental authority.
"DEBT SERVICE PAYMENT" means, with respect to any Bond Payment
Date, whether any such payment shall be due at maturity or upon redemption or
acceleration of the Bonds or otherwise, (i) the interest payable on each such
Bond Payment Date on all Bonds then Outstanding, plus (ii) the principal, if
any, payable on such Bond Payment Date on all such Bonds, plus (iii) the
premium, if any, payable on such Bond Payment Date on all such Bonds.
"EVENT OF DEFAULT" or "DEFAULT" means any Event of Default
under this Indenture as specified in and determined by Section 7.01 hereof.
"GOVERNMENT OBLIGATIONS" means direct general obligations of,
or obligations the payment of the principal of and interest on which are fully
guaranteed by, the United States of America which are noncallable and which at
the time of investment are legal investments under the laws of the State for the
money proposed to be invested therein.
"INDENTURE" means this Indenture of Trust, by and between the
Issuer and the Trustee, dated as of November 1, 1989, as the same may be amended
or supplemented by any Supplemental Indenture.
"INDEPENDENT COUNSEL" means an attorney or firm of attorneys
duly admitted to practice law before the highest court in any state of the
United States of America or in the District of Columbia and not a full-time
employee of the Issuer, the Company or the Trustee.
"INTEREST PAYMENT DATE" means each date on which interest
shall be payable on any of the Bonds in accordance with their terms.
"ISSUER" means (i) City of Weirton, West Virginia, and its
successors and assigns, and (ii) any public corporation or political subdivision
resulting from or surviving any consolidation or merger to which the Issuer or
its successors or assigns may be a party.
"LIEN" means any interest in Property securing an obligation
owed to a Person, whether such interest is based on the common law, statute or
contract, including, but not limited to, a security interest arising from a
mortgage, encumbrance, pledge, conditional sale or trust receipt or from a
lease, consignment or bailment for security purposes.
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"LOAN FUND" means the fund so designated which is created by
Section 4.01 of this Indenture.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its successors
and assigns, and, if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "Moody's" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Company, by notice to the Trustee.
"NET PROCEEDS" means, with respect to any of the Bonds, the
gross proceeds received from the sale of such Bonds, less all expenses, costs
and' taxes (including attorneys' fees) incurred in obtaining such gross
proceeds.
"OUTSTANDING" or "BONDS OUTSTANDING" or "OUTSTANDING BONDS"
means as of any date, all Bonds theretofore authenticated and delivered by the
Trustee under this Indenture, or any supplement hereto, except: (i) any Bond
cancelled by the Trustee because of payment at maturity, whether at its stated
maturity or upon call for redemption prior to maturity; (ii) any Bond for the
payment of the principal or redemption price of and interest on which moneys or
Government Obligations have been deposited with the Trustee on or prior to its
date of maturity, whether at its stated maturity or upon call for redemption
prior to maturity, other than as part of a defeasance of all the Bonds pursuant
to Article VI of this Indenture; (iii) any Bond deemed to be paid in accordance
with Section 6.02 of this Indenture, except that any such Bond shall be deemed
Outstanding `until its date of actual payment, whether at its stated maturity or
upon call for redemption prior to maturity, solely for the purpose of being
exchanged or reregistered; and (iv) any Bond in lieu of or in substitution for
which another Bond shall have been authenticated and delivered or which shall
have been paid pursuant to Section 2.09 of this Indenture, unless proof
satisfactory to the Trustee is presented that any Bond, for which a Bond in lieu
of or in substitution therefor shall have been authenticated and delivered, is
held by a bona fide purchaser, as that term is defined in Article 8 of the
Uniform Commercial Code of the State, as amended, in which case both the Bond so
substituted and replaced and the Bond or Bonds authenticated and delivered in
lieu thereof or in substitution therefor shall be deemed outstanding.
"PAYING AGENT" means the Trustee, acting as paying agent
hereunder, and any additional paying agent for the Bonds appointed pursuant to
Article VIII of this Indenture, their respective successors and any other
corporation which may at any time be substituted in their respective places
pursuant to this Indenture.
"PERSON" means an individual, partnership, corporation, trust
or unincorporated organization, or a government, governmental agency, public
benefit corporation or any political subdivision thereof.
"PROJECT" means the pollution control equipment heretofore
installed in the Company's steel manufacturing plant, located in the City of
Weirton, West Virginia, financed (or refinanced) with the proceeds of the Series
1978 Bonds and Series 1981 Bonds and presently owned by, or leased to, the
Company.
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"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, tangible or intangible.
"RECORD DATE" means the fifteenth day of the month next
preceding any Bond Payment Date.
"RELATED PERSON" means any Person constituting a "related
person" within the meaning ascribed to such quoted term in Section 144(a)(3) of
the Code.
"SERIES 1978 BONDS" means the Issuer's Pollution Control
Revenue Bonds, Series 1978 (National Steel Corporation Project) in the original
aggregate principal amount of $14,300,000.
"SERIES 1978 ESCROW DEPOSIT AGREEMENT" means the Escrow
Deposit Agreement, dated as of October 1, 1989, between the Issuer and Mellon
Bank, N.A., as the same may be amended from time to time.
"SERIES 1978 REFUNDING TRUST FUND" means the 1989 Refunding
Trust Fund created pursuant to the Series 1978 Escrow Deposit Agreement.
"SERIES 1981 BONDS" means the Issuer's Floating Rate Pollution
Control Revenue Bonds (National Steel Corporation Project) Series 1981 in the
original aggregate principal amount of $42,000,000.
"SERIES 1981 ESCROW DEPOSIT AGREEMENT" means the Escrow
Deposit Agreement, dated as of October 1, 1989, between the Issuer and
Pittsburgh National Bank, as the same may .be amended from time to time.
"SERIES 1981 REFUNDING TRUST FUND" means the 1989 Refunding
Trust Fund created pursuant to the Series 1981 Escrow Deposit Agreement.
"SERIES 1989 BONDS" means the Issuer's Pollution Control
Revenue Refunding Bonds (Weirton Steel Corporation Project) Series 1989 in the
original aggregate principal amount of $56,300,000.
"S&P" means Standard & Poor's Corporation, a corporation
organized and existing under the laws of the State of New York, its successors
and assigns, and, if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Company, by notice to the Trustee.
"STATE" means the State of West Virginia.
"SUPPLEMENTAL INDENTURE" means any indenture supplemental to
or amendatory of this Indenture adopted by the Issuer in accordance with Article
IX hereof.
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"TREASURY REGULATIONS" means those regulations promulgated by
the United States Treasury Department under the Internal Revenue Code of 1954,
as amended, as well as any regulations promulgated under the Internal Revenue
Code of 1986, as amended.
"TRUST ESTATE" means all Property which may from time to time
be subject to the Lien of this Indenture.
"TRUSTEE" means Pittsburgh National Bank and its successors as
trustee hereunder, together with any banking institution resulting from or
surviving any consolidation or merger to which it or its successors may be a
party and any temporary or successor trustee at the time serving as such
hereunder. "Principal Corporate Trust Office" means the principal corporate
trust office of the Trustee located at Pittsburgh, Pennsylvania.
[End of Article I]
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ARTICLE II
AUTHORIZATION AND ISSUANCE OF BONDS
Section 2.01. AUTHORIZED AMOUNT OF BONDS. The total principal
amount of Bonds that may be issued hereunder is hereby expressly limited to
Fifty Six Million Three Hundred Thousand Dollars ($56,300,000), except as
provided in Sections 2.09 and 2.14 hereof.
Section 2.02. PURPOSES FOR WHICH BONDS MAY BE ISSUED. Bonds
may be issued only for the purposes of paying the cost of refunding the Series
1978 Bonds and the Series 1981 Bonds and the purposes set forth in Section 2.14
hereof.
Section 2.03. ISSUANCE OF SERIES 1989 BONDS. (a) The Series
1989 Bonds shall be designated "Pollution Control Revenue Refunding Bonds
(Weirton Steel Corporation Project) Series 1989." The Bonds shall be issuable as
fully registered Bonds without coupons in the denomination of $5,000, or any
integral multiple of $5,000 in excess thereof. Unless the Issuer shall otherwise
direct, the Bonds shall be identified by a legend consisting of the letter "R"
and shall be numbered consecutively from 1 upward within each series in order of
issuance.
(b) The Bonds shall be dated as provided in paragraph (d) of
this Section 2.03. The Series 1989 Bonds (i) shall bear interest from their date
on any unpaid principal until the principal balance is paid in full at the rate
of eight and five-eighths per cent (8-5/8%) per annum (computed on the basis of
a 360-day year consisting of twelve 30-day months), payable on May 1, 1990, and
on the first day of each May and November thereafter, and (ii) shall mature on
November 1, 2014.
Except as otherwise provided herein, all Bonds shall be
subject to redemption prior to maturity on the terms, for the reasons, in the
manner, at the price or prices and as otherwise set forth in Article III hereof.
(c) The Bonds shall be issued only in the form of fully
registered Bonds without coupons.
(d) The Bonds shall be dated as of the Interest Payment Date
next preceding the date of authentication thereof by the Trustee, (i) unless
such date of authentication shall be an Interest Payment Date, in which case
such Bonds shall be dated as of such date of authentication, or (ii) unless such
date of authentication is a date prior to the first Interest Payment Date, in
which case such Bonds shall be dated November 1, 1989 (except that Additional
Bonds shall be dated the date specified in the Supplemental Indenture
authorizing their issuance), or (iii) unless interest on the Bonds is in default
as shown by the Bond payment records of the Trustee, in which case such Bonds
shall be dated as of the last Interest Payment Date on which interest on such
Bonds has been paid in full or, if no interest has been paid, such Bonds shall
be dated November 1, 1989 (except that Additional Bonds shall be dated the date
specified in the Supplemental Indenture authorizing their issuance).
(e) The principal of and premium, if any, on the Bonds shall
be payable, upon presentation and, in the case of payment at maturity or by
prior redemption, surrender of such
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Bonds, at the Principal Corporate Trust Office of the Trustee. Payment of
interest on Bonds shall be made on each Interest Payment Date to the Owner on
the Record Date and shall be paid by check mailed by the Trustee to such
registered owner at his address as it appears on the registration books of the
Issuer maintained by the Trustee as bond registrar or at such other address as
is furnished to the Trustee in writing by such registered owner. Except as
otherwise provided in this Section 2.03 (e) and in Section 2.03 (f) hereof,
payment of principal of, premium, if any, and interest on the Bonds shall be
made in lawful money of the United States of America which on the date of
payment thereof shall be legal tender for the payment of public and private
debts.
(f) Notwithstanding anything contained in this Indenture to
the contrary, interest on Bonds due on any Interest Payment Date shall be
payable to the Person in whose name such Bond is registered at the close of
business on the Record Date with respect to such Interest Payment Date,
irrespective of any transfer or exchange of such Bond subsequent to such Record
Date and prior to such Interest Payment Date, unless the Issuer shall default in
the payment of interest due on such Interest Payment Date. In the event Of any
such default, such defaulted interest shall be payable to the Person in whose
name such Bond is registered at the close of business on a special record date
for the payment of such defaulted interest established by notice mailed by or on
behalf of the Issuer to the registered Holders of Bonds not less than fifteen
(15) days preceding such special record date. Such notice shall be mailed to the
Persons in whose name the Bonds are registered at the close of business on the
fifteenth day preceding the date of mailing. Payment of interest and principal
on the Bonds, at the option of the Issuer, may be made by check mailed to the
registered address of the Person entitled thereto.
Section 2.04. EXECUTION; LIMITED OBLIGATIONS. (a) The Bonds
shall be executed in the name and on behalf of the Issuer with the manual or
facsimile signature of its Mayor or Vice-Mayor and sealed with its corporate
seal or a facsimile thereof, each of the foregoing to be attested to by the
manual or facsimile signature of its Clerk. Each such facsimile signature shall
have the same force and effect as a manual signature. In case any officer whose
manual or facsimile signature shall appear on the Bonds shall cease to be such
officer before the delivery of such Bonds, such signature shall nevertheless be
valid and sufficient for all purposes as if such officer had remained in office
until such delivery; and any Bond may be signed on behalf of the Issuer,
manually or in facsimile, by the person who, on the date of execution of such
Bond, shall be the proper officer of the Issuer, even if such officer did not
occupy such office on the date of execution of this Indenture.
(b) The Bonds and the interest thereon shall not be general
obligations of the Issuer, but shall be limited obligations payable solely from
the amounts payable under the Agreement (except to the extent paid out of moneys
attributable to the proceeds derived from the sale of the Bonds or to income
from the investment thereof) and shall be a valid claim of the respective
Holders thereof only against the Bond Fund and other moneys held by Trustee and
the amounts payable under the Agreement. Neither the Issuer, the State nor any
other political subdivision of the State shall be obligated to pay the principal
of the Bonds or the interest thereon or other costs incident thereto except from
the revenues and other amounts pledged therefor. Neither the general credit nor
the taxing power of the Issuer or the State or any other political subdivision
thereof is pledged to the payment of the principal of, premium, if any, or
interest on the Bonds or other costs incident thereto. The Bonds and the
interest thereon shall not
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be a charge upon the tax revenues of the Issuer, or a charge upon any other
revenues or Property of the Issuer not specifically pledged thereto.
Section 2.05. AUTHENTICATION. No Bond shall be valid for any
purpose or shall be entitled to any right or benefit hereunder unless there
shall be endorsed on such Bond a Certificate of Authentication, substantially in
the form set forth in Exhibit A attached hereto, duly executed by the Trustee.
Such executed Certificate of Authentication by the Trustee upon any such Bond
shall be conclusive evidence that such Bond has been authenticated and delivered
under this Indenture. The Trustee's Certificate of Authentication on any Bond
shall be deemed to have been executed by it if signed by an authorized signatory
of the Trustee, but it shall not be necessary that the same person sign the
Certificate of Authentication on all of the Bonds issued hereunder.
Section 2.06. FORM OF BONDS. All Bonds issued under this
Indenture shall be in substantially the form set forth in Exhibit A attached
hereto, with appropriate variations, omissions and insertions as permitted or
required by this Indenture.
Section 2.07. TEMPORARY BONDS. Until Bonds in definitive form
are ready for delivery, the Issuer may execute, and upon the request of the
Issuer, the Trustee shall authenticate and deliver, subject to the provisions,
limitations and conditions set forth herein, one or more Bonds in temporary
form, whether printed, typewritten, lithographed or otherwise produced,
substantially in the form of the definitive Bonds, with appropriate omissions,
variations and insertions, and in authorized denominations. Until exchanged for
Bonds in definitive form, such Bonds in temporary form shall be entitled to the
Liens and benefits of this Indenture. Upon presentation and surrender of any
Bond or Bonds in temporary form, the Issuer shall, at the request of the
Trustee, execute and deliver to the Trustee, and the Trustee shall authenticate
and deliver, in exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge therefor to the
Owner of such Bond in temporary form. Notwithstanding the foregoing, Bonds in
definitive form may be issued hereunder in typewritten form.
Section 2.08. DELIVERY OF THE SERIES 1989 BONDS. (a) Upon the
execution and delivery of this Indenture, the Issuer shall execute and deliver
the Series 1989 Bonds to the Trustee and the Trustee shall authenticate the
Series 1989 Bonds and deliver them to the initial purchasers thereof in
accordance with the directions of the Issuer and the provisions of this Section
2.08.
(b) Prior to or simultaneously with the delivery by the
Trustee of any of the Series 1989 Bonds, there shall be filed with the Trustee
at least:
1. Original, executed counterparts of the Agreement, the
Series 1978 Escrow Deposit Agreement, the Series 1981
Escrow Deposit Agreement and this Indenture.
2. A certificate executed by an Authorized
Representative of the Company with respect to the due
execution and delivery of the Agreement.
11
3. A copy, duly certified by an Authorized
Representative of the Issuer, of the Bond Resolution.
4. An opinion of counsel for the Company stating that,
in the opinion of such counsel, the Agreement has
been duly executed and delivered on behalf of the
Company and is the legal, valid and binding
obligation of the Company enforceable against the
Company in accordance with its terms, except to the
extent certain bankruptcy and insolvency laws and
equitable principles may affect its enforceability.
5. An opinion of counsel for the Issuer stating in the
opinion of such counsel (i) that the Agreement, each
of the 1978 Escrow Deposit Agreement and 1981 Escrow
Deposit Agreement and this Indenture have been duly
authorized, executed and delivered by the Issuer,
(ii) that the Agreement and this Indenture are legal,
valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with
their respective terms, except to the extent certain
bankruptcy or insolvency laws and equitable
principles may affect their enforceability, and (iii)
that this Indenture creates all the Liens which it
purports to create.
6. An opinion of Bond Counsel as to the due existence
and authority of the Issuer; the valid issuance of
the Series 1989 Bonds under the Bond Resolution and
the Act; the exemption from registration of the
Series 1989 Bonds under the Securities Act of 1933,
as amended; the exemption from qualification of the
Indenture under the Trust Indenture Act of 1939, as
amended; and the tax-exempt status of the interest
payable on the Series 1989 Bonds under the Code and
under the laws of the State.
7. An authorization to the Trustee, signed by an
Authorized Representative of the Issuer, to
authenticate and deliver the Series 1989 Bonds to the
purchaser or purchasers therein identified.
8. Such other documents and opinions as the Trustee may
reasonably request.
Section 2.09. MUTILATED, LOST, STOLEN OR DESTROYED BONDS. (a)
In the event any Bond is mutilated, lost, stolen or destroyed, the Issuer may
execute and, upon the request of an Authorized Representative of the Issuer, the
Trustee shall authenticate and deliver a new Bond of like principal amount,
maturity, interest rate and series as the mutilated, destroyed, lost or stolen
Bond in exchange for a mutilated Bond or in substitution for a Bond so
destroyed, lost or stolen, as the case may be. In every such case of exchange or
substitution, the applicant shall furnish to the Issuer, the Trustee and the
Company (i) such security or indemnity as may be reasonably required by any of
them to save each of them harmless from all risks, however remote, and (ii)
evidence to their reasonable satisfaction of the mutilation, destruction, loss
or theft of the applicant's Bond and of the ownership thereof. Upon the issuance
of any Bond upon such exchange or substitution, the Issuer, the Company or
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto
12
and any other expenses, including counsel fees, of the Issuer, the Company or
the Trustee incurred in connection therewith. In case any Bond which has matured
or is about to mature shall become mutilated or be destroyed, lost or stolen,
the Issuer may, instead of issuing a Bond in exchange or substitution therefor,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Bond) if the applicant for such payment shall furnish to
the Issuer, to the Company and to the Trustee such security or indemnity as
either of them may reasonably require to save them harmless, together with
evidence to the reasonable satisfaction of the Issuer, to the Company and the
Trustee of the mutilation, destruction, loss or theft of such Bond and of the
ownership thereof.
(b) All Bonds shall be held and owned upon the express
condition that the provisions of this Section 2.09 are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Bonds and
shall preclude all other rights or remedies, notwithstanding any law or statute
now existing or hereinafter enacted to the contrary.
Section 2.10. INTERCHANGEABILITY OF BONDS. Subject to Section
2.13, any Bond, upon surrender thereof at the Principal Corporate Trust office
of the Trustee together with a written instrument of transfer reasonably
satisfactory to the Trustee duly executed by the registered owner or his duly
authorized attorney, may be exchanged for an equal aggregate principal amount of
fully registered Bonds of the same maturity, interest rate and series as the
Bonds so surrendered in any other authorized denominations.
Section 2.11. NEGOTIABILITY OF BONDS AND REGISTRATION BOOKS.
(a) All Bonds issued under this Indenture shall be negotiable, subject to the
provisions for registration and transfer contained in this Indenture and in the
Bonds.
(b) So long as any Bonds shall remain Outstanding, the Issuer
shall maintain at the Principal Corporate Trust Office of the Trustee books for
the registration and transfer of the Bonds. The Trustee is hereby appointed bond
registrar for the Issuer for the purpose of registering and effecting transfers
on such registration books. By executing this Indenture, the Trustee accepts the
duties and obligations of bond registrar for the Issuer. The Trustee, as bond
registrar, shall register in such books and permit to be transferred thereon,
under such reasonable regulations as the Trustee may prescribe, any Bond
entitled to registration or transfer.
Section 2.12. TRANSFER OF BONDS. (a) Each Bond shall be
transferable only on the books of the Issuer upon surrender thereof at the
Principal Corporate Trust Office of the Trustee together with a written
instrument of transfer reasonably satisfactory to the Trustee duly executed by
the registered owner or his attorney duly authorized in writing. Upon the
transfer of any such Bond, the Issuer shall issue in the name of the transferee
a new, registered Bond or Bonds of the same aggregate principal amount,
maturity, interest rate and series as the surrendered Bond.
(b) The Issuer, the Trustee and any Paying Agent may deem and'
treat the Person in whose name any Bond shall be registered upon the books of
the Issuer as the absolute owner thereof, whether such Bond shall be overdue or
not, for the purpose of receiving payment of the principal or redemption price
of and (subject to the other provisions of this Indenture) interest on such Bond
and for all other purposes. All such payments so made to any such
13
registered owner, or upon his order, shall satisfy and discharge the liability
of the Issuer upon such Bond to the extent of the sum or sums so paid. The
Issuer, the Trustee and any Paying Agent shall not be affected by any notice to
the contrary.
Section 2.13. REGULATIONS WITH RESPECT TO EXCHANGES AND
TRANSFERS. (a) In all cases in which the privilege of exchanging or transferring
Bonds is exercised, the Issuer shall execute and the Trustee shall authenticate
and deliver Bonds .in accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchanges or transfers shall forthwith be
cancelled in accordance with the provisions of Section 5.10 hereof. For every
such exchange or transfer of Bonds, the Issuer or the Trustee may impose a
charge sufficient to reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or transfer, and may charge
the Company for (i) the cost of preparing each new Bond and (ii)' any other
expenses of the Issuer or the Trustee incurred in connection therewith.
(b) The Trustee shall not be required to exchange or register
a transfer of (i) any Bonds during the 15-day period next preceding the
selection of Bonds to be redeemed and thereafter until the date of the mailing
of a notice of redemption of Bonds selected for redemption, or (ii) any Bonds
selected, called or being called for redemption in whole or in part except, in
the case of any Bond to be redeemed in part, the portion thereof not to be so
redeemed.
Section 2.14. ADDITIONAL BONDS. As long as the Agreement is in
effect, one or more series of Additional Bonds may be issued, authenticated and
delivered for the purposes provided in the Agreement. Such Additional Bonds
shall be payable solely from the amounts payable under the Agreement (except to
the extent paid out of moneys attributable to the proceeds derived from the sale
of the Additional Bonds or to income from the investment thereof). The
Additional Bonds of each such series shall be authenticated by Trustee and, upon
payment to the Trustee of the proceeds of the sale of such series of Additional
Bonds, they shall be delivered by Trustee to or upon the order of the initial
purchasers thereof, but only upon there being filed with Trustee:
(a) Original, executed counterparts of a Supplemental
Indenture and an amendment of the Agreement (if required by the Agreement)
providing for the issuance and payment of such series of Additional Bonds,
together with certificates, documents and opinions relating to the Additional
Bonds, the Supplemental Indenture and the amendment to the Agreement (if any)
substantially as described in Section 2.08(b)(2) through (5) and (8) hereof
(with appropriate variations, omissions and insertions), in each case,
reasonably satisfactory to the Trustee. The date or dates of the Additional
Bonds, the rate or rates of interest on the Additional Bonds, the time or times
of payment of the interest thereon and the principal thereof, and, except as
otherwise provided herein, the redemption provisions, if any, with respect
thereto all shall be as provided in the Supplemental Indenture, rather than as
provided in this Indenture, and may differ from the provisions with respect to
the Series 1989 Bonds.
(b) An opinion of Bond Counsel as to the due existence and
authority of the Issuer; the valid issuance of such series of Additional Bonds;
the exemption from registration of such series of Additional Bonds under the
Securities Act of 1933, as amended; the exclusion from gross income for Federal
income tax purposes of the interest payable on such series of Additional Bonds;
the continued exclusion from gross income for Federal income tax purposes
14
of the interest payable on the Series 1989 Bonds and any other Additional Bonds
then Outstanding, after giving effect to the issuance of such series of
Additional Bonds; and the continued exemption from taxation by the State (except
inheritance, estate and transfer taxes) of the Series 1989 Bonds and any other
Additional Bonds then Outstanding and the income therefrom, after giving effect
to the issuance of such series of Additional Bonds.
(c) A written order to the Trustee by the Issuer to
authenticate and deliver the Additional Bonds to the initial purchaser or
purchasers therein identified upon payment to Trustee of a specified sum plus
accrued interest.
(d) Any other certificate, opinion or documents specified in
the Supplemental Indenture authorizing the issuance of the Additional Bonds.
Each series of Additional Bonds issued pursuant to this
Section shall be equally and ratably secured under this Indenture with the
Series 1989 Bonds and all other series of Additional Bonds, if any, theretofore
issued pursuant to this Section, without preference, priority or distinction of
any Bonds over any other thereof.
[End of Article II]
15
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY;
TENDER OPTION RIGHTS OF BONDHOLDERS
Section 3.01. Mandatory Redemption; Extraordinary Redemption;
Optional Redemption.
(a) The Bonds are subject to mandatory redemption prior to
their maturity upon a "Determination of Taxability" (as hereinafter defined)
with respect to any Bond. If so called for redemption, the Bonds shall be
redeemed by the Issuer in whole at any time within one hundred eighty (180) days
after such Determination of Taxability, at one hundred percent (100%) of the
aggregate principal amount of the Bonds then Outstanding, plus accrued interest
to the redemption date.
A "Determination of Taxability" shall be deemed to
have been made upon the first to occur of the following events:
(i) the date on which the Company notifies
the Trustee that an "Event of Taxability" (as
hereinafter defined) has occurred, which notice is
supported by one or more tax schedules, returns or
documents that evidence the occurrence of such Event
of Taxability;
(ii) the date on which the Company or the
Trustee is advised by private ruling, technical
advice or any other written communication from any
authorized official of the Internal Revenue Service
that, based upon any filings of the Company or any
other person or entity, or upon any review or audit
of the Company or any other person or entity, or upon
any other grounds whatsoever, an Event of Taxability
has occurred;
(iii) the date on which the Trustee or the
Company is advised that a court of competent
jurisdiction has issued an order, declaration, ruling
or judgment to the effect that an Event of Taxability
has occurred; or
(iv) the date the Trustee shall have
received written notice from any owner of any Bond
that it has received a written assertion or claim by
any authorized official of the Internal Revenue
Service that an Event of Taxability has occurred;
provided, however, that no Determination of Taxability described in clause (i)
above shall be deemed to have occurred unless the Trustee shall have received a
written opinion of Bond Counsel satisfactory to the Trustee, in form and
substance satisfactory to the Trustee, to the effect that an Event of Taxability
has occurred.
"Event of Taxability," with respect to any Bond,
means a change of law or regulation, or the interpretation thereof, or the
occurrence of any other event or the existence of any other circumstance
(including without limitation the fact that any representation or warranty
16
of the Company or the Issuer made in connection with the issuance of the Bonds
is or was untrue) that has the effect of causing interest payable on any Bond to
be includable in the gross income of the owner thereof for Federal income tax
purposes (other than by reason that such interest (i) is includable in the gross
income of an owner or former owner of a Bond while such owner or former owner is
or was a "substantial user" of the Project or a "related person" to a
"substantial user," as such terms are used in Section 103(b)(13) of the Internal
Revenue Code of 1954, as amended or (ii) is deemed an item of tax preference,
including without limitation an item subject to any alternative minimum tax).
(b) The Bonds shall be redeemed prior to maturity by the
Issuer in whole at any time at 100% of the principal amount thereof, plus
interest accrued thereon to the date set for redemption, if the Company elects
to terminate the Agreement pursuant to Section 8.1(a) thereof, upon the
occurrence of one of the following events:
(i) the Project shall have been damaged or destroyed
to such extent that (1) in the reasonable opinion of the
Company expressed in a certificate signed by an Authorized
Representative of the Company, the Project cannot be
reasonably restored within a period of 6 months from the date
of such damage or destruction, or (2) the Company is thereby
prevented or, in the reasonable opinion of the Company
expressed in a certificate signed by an Authorized
Representative of the Company, is likely to be prevented from
carrying on its normal operation of the Project for a period
of 6 months from the date of such damage or destruction; or
(ii) title to, or the temporary use of all or
substantially all, of the Project shall have been condemned by
a competent authority which Condemnation results or, in the
reasonable opinion of the Company expressed in a certificate
signed by an Authorized Representative of the Company, is
likely to result in the Company being thereby prevented from
carrying on its normal operation of the Project for a period
of 6 months; or
(iii) as a result of changes in the Constitution of
the United States of America or of the State or of legislative
or executive action of any political subdivision thereof or of
the United States of America or by final decree or judgment of
any court, after the contest thereof by the Company, (x) the
Agreement becomes void or unenforceable or, (y) in the
reasonable opinion of the Company expressed in a certificate
signed by an Authorized Representative of the Company, (A) the
Agreement becomes impossible of performance in accordance with
the intent and purposes of the parties as expressed therein or
(B) unreasonable burdens or excessive liabilities are imposed
upon the Company by reason of the operation of the Project; or
(iv) a change shall have occurred in the economic
availability of raw materials, manufactured products, energy
sources, operating supplies or facilities necessary for the
operation of the Project for the purposes for which the
Project was originally constructed, or such technological or
other changes shall have occurred that, in the reasonable
opinion of the Company expressed in a certificate
17
signed by an Authorized Representative of the Company, the
Project is rendered uneconomic, impractical or unfeasible for
the purposes for which it was originally constructed.
(c) The Series 1989 Bonds also shall be redeemed prior to
maturity by the Issuer, at the option of the Company, in whole at any time or in
part from time to time on any Interest Payment Date on and after November 1,
1999, upon payment in each case of the applicable redemption price (expressed as
a percentage of the principal amount of such Bonds to be so redeemed), as set
forth in the schedule below, together with interest accrued thereon to the date
set' for redemption:
Period During
Which Redeemed
(Both dates inclusive) Redemption Price
---------------------- ----------------
November 1, 1999 to October 31, 2000 102%
November 1, 2000 to October 31, 2001 101-1/2%
November 1, 2001 to October 31, 2002 101%
November 1, 2002 to October 31, 2003 100-1/2%
November 1, 2003 and thereafter 100%
(d) In the event of redemption of less than all the Bonds
Outstanding, the Trustee shall select the Bonds to be redeemed by lot and for
such purposes, treat each Bond in a denomination greater than $5,000 as if it
were that number of separate Bonds derived by dividing its denomination by
$5,000.
Section 3.02. NOTICE OF REDEMPTION. (a) Whenever Bonds are to
be redeemed pursuant to Section 3.01 hereof, the Trustee shall give notice of
the redemption of the Bonds in the name of the Issuer stating: (i) the Bonds or
portions thereof to be redeemed; (ii) the redemption date; (iii) the redemption
price; and (iv) that if moneys or Government Obligations sufficient for such
redemption have been deposited with the Trustee, from and after the redemption
date, interest on any Bond so called for redemption shall cease to accrue.
(b) Notice required by this Section 3.02 shall be given by the
Trustee by first-class mail, postage prepaid, not less than thirty (30) days nor
more than forty-five (45) days prior to the redemption date, to the registered
owners of any Bonds to be redeemed at the addresses of such registered owners
appearing on the registration books. Any failure to give such notice or any
defect therein shall not affect the proceedings for redemption of any Bond as to
which no such failure or defect has occurred.
Section 3.03. Payment of Redeemed Bonds. (a) After notice
shall have been given in the manner provided in Section 3.02 hereof, Bonds or
portions thereof called for redemption shall become due and payable on the
redemption date so designated, upon presentation and surrender of such Bonds at
the Principal Corporate Trust Office of the Trustee. If there shall be called
for redemption less than all of a Bond, the Issuer shall, upon the surrender of
such Bond and without charge to the owner thereof, (i) pay the redemption price
of the $5,000 unit or units of principal amount called for redemption and (ii)
execute and cause the Trustee to
18
authenticate and deliver for the unredeemed balance of the principal amount of
any such Bond so surrendered new Bonds in any authorized denominations having
the same maturity and interest rate and of the same series as such redeemed
Bonds.
(b) If, on the redemption date, moneys or Government
Obligations in an amount sufficient for the redemption of all Bonds or portions
thereof to be redeemed, and interest thereon to the redemption date, shall be
held by the Trustee, the Bonds or portions thereof so called for redemption
shall cease to bear interest and such Bonds or portions thereof shall no longer
be Outstanding hereunder or be secured by or entitled to the benefits of this
Indenture. If such moneys or Government Obligations shall not be so available on
or prior to the redemption date, such Bonds or portions thereof shall continue
to bear interest until paid at the same rate as would have been applicable had
they not been called for redemption and shall continue to be secured by and
entitled to the benefits of this Indenture.
Section 3.04. TENDER OPTION RIGHT OF HOLDERS. (a) In the event
that there shall occur (i) a Designated Event (as defined below) and (ii) a
Qualifying Downgrade (as defined below), each Holder of Series 1989 Bonds shall
have the right, at such Holder's option, to tender to the Company and require
the Company to purchase all or any part of the Series 1989 Bonds owned by it
(but only in denominations of $5,000 or any integral multiple thereof) on the
date (the "Repurchase Date") that is 90 days after the later to occur of (i)
public notice of such Designated Event or (ii) the Qualifying Downgrade, at 100%
of the principal amount thereof, plus any accrued interest to the Repurchase
Date. The Company has agreed, in Section 4.2(f) of the Agreement, to purchase
each Series 1989 Bond so tendered at a purchase price equal to 100% of the
principal amount thereof, plus accrued interest thereon to the Repurchase Date.
(b) on or before the twenty-eighth (28th) day following the
Qualifying Downgrade, at the request of the Company (which request the Company
has agreed to make in Section 4.2(f) of the Agreement not more than 21 days
after the Qualifying Downgrade), the Trustee shall promptly give notice of a
Designated Event and Qualifying Downgrade and of the repurchase right set forth
herein arising as a result thereof by registered or certified mail to each
Series 1989 Bondholder at such Holder's address appearing in the registration
books. The Trustee shall also cause a copy of such notice to be published in an
Authorized Newspaper. Each such notice of a repurchase right shall state:
(i) the Repurchase Date;
(ii) the date by which the repurchase right must be
exercised;
(iii) the price at which the repurchase is to be made, if
the repurchase right is exercised; and
(iv) a description of the procedure which a Series 1989
Bondholder must follow to exercise the repurchase
right.
No failure of the Company to request the Trustee to give, or any failure of the
Trustee to give, the foregoing notice shall limit any Series 1989 Bondholder's
right to exercise a repurchase right.
19
(c) To exercise a repurchase right, a Holder of Series 1989
Bonds shall deliver to the Company (or an agent designated by the Company for
such purpose in the notice referred to in (b) above) at least ten (10) days
prior to the Repurchase Date (i) written notice of the Series 1989 Bondholder's
exercise of such right, which notice shall set forth the name of the Holder, the
principal amount of the Series 1989 Bond or Series 1989 Bonds (or portion
thereof) to be repurchased, and a statement that the repurchase right is being
exercised thereby and (ii) the Series 1989 Bond or Series 1989 Bonds with
respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company. Such written notice shall be irrevocable unless the
rescission thereof is Duly Approved by the Continuing Directors.
(d) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company has agreed, in Section 4.2(f) of
the Agreement, to pay or cause to be paid the price payable with respect to the
Series 1989 Bond or Series 1989 Bonds as to which the repurchase right has been
exercised in cash to the Holder of such Series 1989 Bond or Series 198,9 Bonds
on the Repurchase Date. In the event that a repurchase right is exercised with
respect to less than the entire principal amount of a surrendered Series 1989
Bond, the Issuer shall execute and deliver to the Trustee and the Trustee shall
authenticate for issuance in the name of the Holder a new Series 1989 Bond or
Series 1989 Bonds in the aggregate principal amount of that portion of such
surrendered Series 1989 Bond or Series 1989 Bonds not repurchased.
(e) Solely for the purposes of this Section 3.04, the
following terms shall have the following meanings respectively:
(i) a "Designated Event" shall be deemed to have
occurred at such time as (A) a "person" or "group" (within the meanings of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 as in effect
as of the date hereof (the "Exchange Act")) (other than the Company's 1984
Employee Stock Ownership Plan or 1989 Employee Stock Ownership Plan or any other
employee benefit plan of the Company) becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of Capital Stock representing more than
thirty percent (30%) of the voting power of all classes of the Company's then
outstanding Capital Stock; or (B) the Continuing Directors cease to constitute
at least a majority of the Board of Directors of the Company; or (C) (1) the
Company shall consolidate with or merge into any other corporation or convey,
transfer or lease all or substantially all of its assets to any person or (2)
any corporation shall consolidate with or merge into the Company, in either
event pursuant to a transaction in which any Capital Stock of the Company
outstanding immediately prior to the effectiveness thereof is changed into or
exchanged for cash, securities or other property; or (D) the Company or any
Subsidiary shall purchase or otherwise acquire, directly or indirectly,
beneficial ownership of Capital Stock of the Company if, after giving effect to
such purchase or acquisition, the Company (together with all Subsidiaries) shall
have acquired during any period of 12 consecutive months, beneficial ownership
of an aggregate of Capital Stock representing more than thirty percent (30%) of
the voting power of all classes of Capital Stock of the Company outstanding on
the date immediately prior to the first such purchase or acquisition during such
period; or (E) on any day (a "Calculation Date") (1) the Company shall make any
distribution or distributions of cash, securities or other property (other than
regular periodic cash dividends at a rate which is substantially consistent with
past practice, including past practice with respect to increases in dividends,
and other than dividends in Capital Stock, or rights to
20
acquire Capital Stock substantially equivalent to Capital Stock of the Company)
to holders of capital stock whether by means of dividend, reclassification,
recapitalization or otherwise, or (2) the Company or any Subsidiary shall
purchase or otherwise acquire, directly or indirectly, beneficial ownership of
Capital Stock of the Company, and the sum of the Applicable Percentages of all
such distributions, purchases and acquisitions which have occurred on the
Calculation Date and during the 364-day period immediately preceding the
Calculation Date shall be at least 30%.
(ii) the term "Qualifying Downgrade" shall be deemed to have
occurred if on any date within the 90 day period following public notice of the
occurrence of a Designated Event (which period after such occurrence shall be
extended so long as rating of the Series 1989 Bonds is under publicly announced
consideration for possible downgrade on account of the occurrence of a
Designated Event by a Rating Agency) (A) in the event the Series 1989 Bonds have
been rated by any Rating Agency on the Rating Date as Investment Grade, the
rating of the Series 1989 Bonds by such Rating Agency shall be below Investment
Grade, or (B) in the event the Series 1989 Bonds have been rated by any Rating
Agency on the Rating Date below Investment Grade, the rating on the Series 1989
Bonds by such Rating Agency shall be at least one Full Rating Category below the
rating of the Series 1989 Bonds by such Rating Agency on the Rating Date. As
used herein, "Rating Agency" means Standard & Poor's Corporation and its
successors ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. and its successors
("Moody's") or, if S&P or Moody's or both shall not make a rating on the Series
1989 Bonds publicly available, a substitute nationally recognized rating agency
or agencies, as the case may be, selected by the Company which shall be
substituted for S&P on Moody's or both, as the case may be.
(iii) the term "Rating Date" shall mean the date which is 121
days prior to (A) public notice of the occurrence of a Designated Event or (B)
if the Designated Event occurs as a result of a "person" or "group" acquiring
Capital Stock of the Company, the date such "person" or "group" became the
"beneficial owner" of outstanding Capital Stock of the Company representing more
than 30% of the voting power of such Capital Stock; provided that if such
"person" or "group" acquires such Capital Stock of the Company from another
"person" or "group" (the "transferor"), then the Rating Date shall mean the date
which is 121 days prior to the date the transferor became the "beneficial owner"
of such Capital Stock of the Company.
(iv) the term "Full Rating Category" shall mean (A) with
respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC,
CC, and C, (B) with respect to Moody's, any of the following categories: Aaa,
Aa, A, Baa, Ba, B, Caa, Ca, and C, (C) the equivalent of any such category by
S&P or Moody's and (D) the equivalent of such ratings by any other nationally
recognized securities rating agency selected by the Company. In determining
whether the rating of the Series 1989 Bonds has decreased by the equivalent of
one Full Rating Category, gradation within Full Rating Categories (+ and - for
S&P; 1, 2 and 3 for Moody's; or the equivalent for S&P or Moody's or any such
other rating agency) shall be taken into account.
(v) the term ""Investment Grade" shall mean BBB or higher by
S&P or Baa3 or higher by Moody's or the equivalent of such ratings by S&P or
Moody's or by a nationally recognized substitute securities rating agency or
agencies.
21
(vi) the term "public notice" shall, without limitation,
include any filing or report made in accordance with the requirements of the
Securities and Exchange Commission or any press release or public announcement
made by the Company.
(vii)the term "Authorized Newspaper" shall mean a newspaper of
general circulation in The Borough of Manhattan, City of New York.
(viii) the term "Applicable Percentage" shall mean (A) in the
case of each distribution referred to in clause (E) of the definition of
Designated Event, the percentage determined as of the Calculation Date (as such
term is defined in the definition of Designated Event) of each such distribution
by dividing the aggregate fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive) of such
distribution, by the fair market value (based on the Current Market Price) of
all of the shares of Capital Stock of the Company outstanding on the day
immediately prior to such Calculation Date, and (B) in the case of each purchase
or acquisition referred to in clause (E) of the definition of Designated Event,
the percentage determined as of the Calculation Date of each such purchase or
acquisition by dividing all amounts expended by the Company and its Subsidiaries
(the amount expended, if other than in cash, to be determined in good faith by
the Board of Directors, whose determination shall be conclusive) in connection
with the purchase or acquisition of any shares of any class of Capital Stock of
the Company by the fair market value (based on the Current Market Price) of all
of the shares of Capital Stock of the Company outstanding on the day immediately
prior to such Calculation Date.
(ix) the term "Current Market Price" shall mean the average of
the daily closing prices (or, if none, the average of the last daily bid and
asked prices) of the applicable class of Capital Stock of the Company as quoted
by the primary securities exchange on which such stock is traded, or, if none,
the primary inter-dealer quotation system which reports quotations for such
stock, for the trading days during the period of 90 consecutive calendar days
ending on the day immediately prior to the Calculation Date, or, if none, the
price for the applicable class of Capital Stock as determined in good faith by
the Board of Directors whose determination shall be conclusive.
(x) "Affiliate", when used to indicate a relationship with a
specified Person, means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such specified Person.
(xi) "Associate" of a specified Person means (A) any
corporation, partnership or other organization of which such specified Person is
an officer or partner, (B) any trust or other estate in which such specified
Person has a substantial beneficial interest or as to which such specified
Person serves as trustee or in a similar fiduciary capacity, (C) any relative or
spouse of such specified Person, or any relative of such spouse, who has the
same home as such specified Person and (D) any Person who is a director,
officer, partner or trustee of such specified Person or of any corporation,
partnership or other organization which is an Affiliate or Associate of such
specified Person.
(xii) a Person shall be deemed the "Beneficial Owner" of any
securities as to which such Person or any of such Person's Affiliates or
Associates is or may be deemed to
22
be the beneficial owner pursuant to Rule 13d-3 under the Exchange Act (or any
comparable or successor law or regulation), as well as any securities as to
which such Person or any of such person's Affiliates or Associates has the right
to become Beneficial Owner (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial owner" of any security (A) solely because
such security has been tendered pursuant to a tender or exchange offer made by
such Person or any such Person's Affiliates or Associates until such tendered
security is accepted for purchase or exchange or (B) solely because such person
or any of such Person's Affiliates or Associates has or shares the power to vote
or direct the voting of such security pursuant to a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of the Exchange Act,
except if such power (or the arrangements relating thereto) is then reportable
on Schedule 13D under the Exchange Act (or any comparable or successor report).
(xiii) the term "Continuing Director" shall mean a director
who either was a member of the board of directors of the Company on the date of
this Indenture or who became a director of the Company subsequent to such date
and whose election, or nomination for election by the Company's stockholders,
was Duly Approved by the Continuing Directors then on the board of directors of
the Company, either by a specific vote or by approval of the proxy statement
issued by the Company on behalf of the entire board of directors of the Company
in which such individual is named as nominee for director; provided, however,
that in no event shall a director be considered a "Continuing Director" if such
director is a Related Person and the Designated Event to be voted upon involves
such Related Person or is one in which such Related Person has an interest
(other than only a proportionate interest as a stockholder of the Company).
(xiv) "Duly Approved by the Continuing Directors" shall mean
an action approved by the vote of at least a majority of Continuing Directors
then on the entire board of directors of the Company, except, if the votes of
such Continuing Directors in favor of such action would be insufficient to
constitute an act of the entire board of directors of the Company (if a vote by
the entire board of directors were to have been taken), then such action must be
approved by the unanimous vote of the Continuing Directors so long as there are
at least two Continuing Directors on the board of directors at the time of such
unanimous vote.
(xv) "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
(xvi) "Related Person" shall mean and includes (A) any
individual, corporation, partnership, group, association or other person or
entity which, together with its Affiliates and Associates, is the Beneficial
Owner of not less than 5% of the voting power of the Capital Stock or was the
Beneficial Owner of not less than 5% of the voting power of the Capital Stock
(1) at the time the definitive agreement providing for the Designated Event
(including any amendment thereof) was entered into, (2) at the time a resolution
approving the Designated Event was adopted by the board of directors of the
Company or (3) as of the record date for the determination of stockholders
entitled to notice of and to vote on, or consent to, the Designated
23
Event, and (B) any Affiliate or Associate of any such individual, corporation,
partnership, group, association or other person or entity.
(xvii) "Board of Directors" shall mean the Board of Directors
of the Company or any authorized committee of the Board of Directors.
(xviii) "Capital Stock" shall mean stock of any class or
classes (however designated) the holders of which are ordinarily, in the absence
of contingencies, entitled to vote for the election of a majority of the
directors (or persons performing similar functions) of the corporation,
association or other business entity in question, even though the right to so
vote is at the time suspended by reason of the happening of such a contingency.
(xix) "Subsidiary" shall mean any corporation more than 50$ of
whose Capital Stock shall at the time be owned, directly or indirectly, by the
Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries.
[End of Article III]
24
ARTICLE IV
FUNDS, BOND PROCEEDS, REVENUES AND APPLICATION THEREOF
Section 4.01. ESTABLISHMENT OF FUNDS. (a) The following trust
funds are hereby established with the Trustee and shall be held, maintained and
administered by the Trustee in accordance with this Indenture:
(i) Bond Fund - Weirton Steel Corporation Project (the
"Bond Fund").
(ii) Loan Fund - Weirton Steel Corporation Project (the
"Loan Fund").
(b) There also have been created (i) the Series 1978 Refunding
Trust Fund pursuant to Section 2 of the Series 1978 Escrow Deposit Agreement and
(ii) the Series 1981 Refunding Trust Fund pursuant to Section 2 of the Series
1981 Escrow Deposit Agreement. Neither the Series 1978 Refunding Trust Fund nor
the Series 1981 Refunding Trust Fund is, or shall be deemed to be, created under
or pursuant to, or secured by the Lien of, this Indenture.
Section 4.02. Application of Bond Proceeds. The Net Proceeds
of the Bonds initially issued pursuant to Section 2.01 hereof shall be deposited
as follows:
(a) In the Bond Fund: all accrued interest, if any,
paid by the initial purchasers of the Bonds; and
(c) In the Loan Fund: the balance of the proceeds
from the sale of the Bonds.
Section 4.03. MONEYS TO BE HELD IN TRUST. All moneys deposited
with, paid to or received by the Trustee for the account of the Issuer
(excluding the Series 1978 Refunding Trust Fund and the Series 1981 Refunding
Trust Fund) shall be held by the Trustee in trust and shall be subject to the
Lien of this Indenture and held for the security of all Holders of the Bonds
until paid in full; provided, however, that moneys which have been deposited
with, paid to or received by the Trustee for the redemption of a portion of the
Bonds, notice of the redemption of which has been given shall be held in trust
for and subject to a Lien in favor of only the Holders of Bonds so called for
redemption.
Section 4.04. USE OF THE MONEYS IN THE LOAN FUND.
(a) Immediately after deposit of the moneys in the Loan Fund
pursuant to Section 4.02(b) hereof, the Trustee shall transfer such moneys, on
behalf of the Company, as follows:
(i) cash in the Loan Fund in the sum of $14,300,000
shall be sold to Mellon Bank, N.A., as trustee of the Series
1978 Refunding Trust Fund, in exchange for cash of an equal
amount in the Series 1978 Refunding Trust Fund; and
25
(ii) cash in the Loan Fund in the sum of $42,000,000
shall be sold to Pittsburgh National Bank, as trustee of the
Series 1981 Refunding Trust Fund, in exchange for cash of an
equal amount in the Series 1981 Refunding Trust Fund.
(b) The Issuer agrees that moneys in the Series 1978 Refunding
Trust Fund and in the Series 1981 Refunding Trust Fund shall be applied and
expended solely for the purpose of refunding the Series 1978 Bonds and the
Series 1981 Bonds, respectively, and as otherwise provided' in the Series 1978
Escrow Deposit Agreement and the Series 1981 Escrow Deposit Agreement, as the
case may be.
Section 4.05. PAYMENTS INTO THE BOND FUND. There shall be
deposited in the Bond Fund from time to time all payments specified in Section
4.2(a) of the Agreement and all other moneys received by the Trustee under and
pursuant to any. of the provisions of the Agreement or the Indenture which are
required to be or which are accompanied by directions that such moneys are to be
paid into the Bond Fund.
Section 4.06. USE OF MONEYS IN THE BOND FUND. Except as
provided in Section 4.07 hereof, moneys in the Bond Fund shall be used solely
for the payment of the principal of:, premium, if any, and interest on the Bonds
and for the redemption of the Bonds prior to maturity.
Section 4.07. INVESTMENT OF MONEYS; TAX COVENANTS. (a) Any
moneys held as a part of the Bond Fund or any other fund (except the Series 1978
Refunding Trust Fund and the Series 1981 Refunding Trust Fund) shall be invested
or reinvested by the Trustee to the extent permitted by law, at the written
request of and as directed by an Authorized Representative of the Company, in
any of the Authorized Investments.
(b) The Trustee may make any and all such investments through
its own bond or investment department or the bond or investment department of
any bank or trust company under common control with the Trustee. All such
investments shall at all times be a part of the fund or account from which the
moneys used to acquire such investments shall have come and all income and
profits on such investments shall be credited to, and losses thereon shall be
charged against, such fund. All investments hereunder shall be registered in the
name of the Trustee, as Trustee under the Indenture. All investments hereunder
shall be held by or under the control of the Trustee. The Trustee may sell and
reduce to cash a sufficient amount of investments in the Bond Fund whenever the
cash balance in the Bond Fund is insufficient, together with any other funds
available therefor, to pay the principal and interest on the Bonds when due.
(c) Any investment herein authorized is subject to the
condition that no use of the Bond Proceeds or of any other moneys (including
without limitation the proceeds of any insurance or any Condemnation award with
respect to the Project) shall be made which would cause the Bonds to be
"arbitrage bonds" within the meaning of such quoted term under Section 148 of
the Code; provided, however, that the Company shall be solely responsible for
the selection of any Authorized Investment under Section 4.07(a) hereof, and the
Trustee shall be entitled to rely on any investment direction given to it by the
Company pursuant to Section 4.07(a) above without liability to the Company, the
Issuer, any Bondholder or-any other Person
26
in the event that any such investment shall cause all or any of the Bonds to be
or become "arbitrage bonds" within the meaning of Section 148(a) of the Code.
(d) The Issuer shall not take any action or omit to take any
action, or knowingly permit the Company to take any action or omit to take any
action, that would cause the interest payable on the Bonds not to be excludable
from the gross income of the Holders thereof for Federal income tax purposes.
Section 4.08. NONPRESENTMENT OF BONDS. (a) In the event any
Bond shall not be presented for payment when the principal thereof becomes due,
either at maturity, or at the date fixed for redemption thereof, or otherwise,
if moneys or Government Obligations sufficient to pay any such Bond and interest
thereon shall have been made available to the Trustee for the benefit of the
owner thereof, all liability of the Issuer to the Owner thereof for the payment
of such Bond shall forthwith cease, terminate and be completely discharged, and
thereupon it shall be the duty of the Trustee to hold such funds, without
liability for interest thereon, for the benefit of the owner of such Bond who
shall thereafter be restricted exclusively to such funds for any claim of
whatever nature on his part under this Indenture with respect to such Bond.
(b) Any moneys or Government Obligations so deposited with and
held by the Trustee not so applied to the payment of Bonds or interest thereon
within two (2) years after the date on which the same shall have become due
shall be repaid by the Trustee to the Company upon direction of an Authorized
Representative of the Company, and thereafter Owners of Bonds shall be entitled
to look only to the Company for payment, and then to the extent of the amount so
repaid, and all liability of the Trustee with respect to such money shall
thereupon cease, and the Company shall not be liable for any interest thereon
and shall not be regarded as a trustee of such money.
[End of Article IV]
27
ARTICLE V
GENERAL COVENANTS AND PROVISIONS
Section 5.01. AUTHORITY OF ISSUER; VALIDITY OF INDENTURE AND
BONDS. The Issuer hereby covenants that it is duly authorized under the
Constitution and laws of the State, including, particularly and without
limitation, the Act, to issue the Bonds authorized hereby, to execute this
Indenture and to pledge the revenues and receipts in the manner and to the
extent herein set forth; that all action on its part for the issuance of the
Series 1989 Bonds authorized hereby and the execution and delivery of this
Indenture has been duly and effectively taken; that the Series 1989 Bonds in the
hands of the Holders thereof are and will be valid and enforceable limited
obligations of the Issuer according to the import thereof; that upon the date of
delivery of any Additional Bonds, all action on its part for the issuance of
such Additional Bonds will have been duly and effectively taken; and that such
Additional Bonds in the hands of the Holders thereof are and will be valid and
enforceable limited obligations of the Issuer according to the import thereof.
Section 5.02. PERFORMANCE OF COVENANTS. The Issuer hereby
covenants, and the Trustee by executing this Indenture covenants, that each will
faithfully observe and perform at all times any and all covenants, undertakings,
stipulations and provisions on its part to be observed or performed contained
(i) in this Indenture, (ii) in any Bond executed, authenticated and delivered
hereunder and (iii) in the case of the Issuer, in the Agreement.
Section 5.03. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Issuer hereby covenants that it will promptly pay or cause to be paid the
principal of, whether at maturity, by acceleration or call for redemption or
otherwise, premium, if any, and interest on every Bond issued under this
Indenture at the place, on the dates and in the manner provided herein and
therein. All such principal, premium and interest payments on the Bonds shall be
payable solely from revenues and receipts derived from the Agreement (except to
the extent paid out of moneys attributable to the proceeds derived from the sale
of the Bonds and income from the investment thereof). Nothing in the Bonds or in
this Indenture shall be construed as a pledge of any funds or assets of the
Issuer other than those pledged hereby. Neither the State nor any political
subdivision thereof (other than the Issuer to the extent provided herein) shall
in any event be liable for the payment of any such principal, premium or
interest payment on any of the Bonds or for the performance of -any pledge,
obligation or agreement undertaken by the Issuer.
Section 5.04. REVENUES FROM AGREEMENT. The Issuer hereby
covenants that so long as any of the Bonds are Outstanding it will deposit, or
cause to be deposited, with the Trustee for its account all revenues and
receipts derived pursuant to the Agreement, this Indenture or otherwise to pay
the Debt Service Payments on the Bonds as the same become due and payable.
Section 5.05. PRIORITY OF LIEN OF INDENTURE. The Issuer
hereby covenants that this Indenture creates a first Lien upon the Trust Estate
and the Issuer agrees not to create or permit to be created any Lien upon the
Trust Estate or any part thereof other than the Lien of this Indenture.
28
Section 5.06. ENFORCEMENT OF DUTIES AND OBLIGATIONS OF THE
COMPANY. The Issuer hereby covenants that, to the extent requested by the
Trustee, it shall take all legally available action to cause the Company to
perform fully all duties and acts, and to comply fully with the covenants of the
Company, required by the Agreement, in the manner and at the times provided in
the Agreement.
Section 5.07. RECORDATION OF INDENTURE AND AGREEMENT;
FILING OF SECURITY INSTRUMENTS. (a) The Issuer hereby covenants that it will
cause this Indenture, the Agreement (or a memorandum thereof), and all
supplements hereto and thereto, together with all necessary security instruments
and financing statements, to be recorded or filed, as the case may be, in such
manner and in such places, if any, as may be required by law in order to perfect
the Lien of, and the security interests created by, this Indenture.
(b) The Issuer hereby covenants that it will execute, and, to
the extent requested by the Trustee, will cause the Company to execute, for
filing where appropriate, all documents, including, without limitation,
continuation statements under the Uniform Commercial Code of the State, in such
manner and in such places as may be required by the law of the State in order to
protect and maintain in force the Lien of, and the security interests created
by, this Indenture.
Section 5.08. RIGHTS UNDER AGREEMENT. The Agreement, a
duly executed counterpart of which has been filed with the Trustee, sets forth
the respective covenants and obligations of the Issuer and the Company.
Reference is hereby made thereto for detailed statements of the covenants,
obligations and rights of the Company and the Issuer thereunder. The Issuer
agrees that the Trustee, in its name or in the name of the Issuer, may enforce
all rights of the Issuer and all obligations of the Company under and pursuant
to the Agreement, to the extent pledged and assigned to the Trustee hereunder
for and on behalf of the Bondholders, whether or not a Default exists hereunder.
Section 5.09. LIST OF BONDHOLDERS. (a) The Trustee, as
bond registrar, shall maintain a list of the names and addresses of the Holders
of all Bonds which from time to time may be registered on the registration books
kept by the Trustee. At reasonable times and under reasonable regulations
established by the Trustee, said list may be inspected and copied by the Company
or any Holder (or a designated representative thereof) of Bonds then
Outstanding.
(b). Each Bondholder, by the purchase and acceptance of a
Bond, consents to the disclosure of his name and address and the principal
amount of Bonds held by him in accordance with this Section 5.09 and agrees that
the Trustee shall not be held accountable for the disclosure of any such
information made in accordance with this Section 5.09.
Section 5.10. CANCELLATION. Unless otherwise specified in
this Indenture, all Bonds which have been paid, redeemed or surrendered for
transfer or exchange or have matured shall be cancelled and cremated or
otherwise destroyed by the Trustee. The Trustee shall deliver to the Issuer and
the Company a certificate evidencing such cremation or destruction.
Section 5.11. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS. In any case where the date fixed for payment of interest or premium on
or principal of the Bonds or the date
29
fixed for redemption of any Bonds shall not be a Business Day, then payment of
such interest, premium or principal need not be made on such date but may be
made on the next succeeding Business Day with the same force and effect as if
made on such date of maturity or the date fixed for such redemption, as the case
may be.
[End of Article V]
30
ARTICLE VI
DISCHARGE OF INDENTURE
Section 6.01. DISCHARGE OF INDENTURE. If (i) the Issuer shall
pay or cause to be paid, in accordance with the provisions of this Indenture, to
the Owners of the Bonds, the principal of, premium, if any, and interest due or
to become due on all the Bonds at the times and in the manner stipulated
therein, (ii) the Issuer shall not then be in default in the performance of any
of its other covenants and promises in the Bonds or in this Indenture and (iii)
the Issuer shall pay or cause to be paid to the Trustee and any additional
Paying Agents all sums of money due or to become due according to the provisions
hereof, then these presents and the estate and rights hereby granted shall
cease, terminate and be void, whereupon the Trustee shall cancel and discharge
the Lien of this Indenture, and execute and deliver to the Issuer such
instruments in writing as shall be required to release the Lien hereof and
reconvey, release, assign and deliver unto the Issuer any and all of the Trust
Estate.
Section 6.02. DEFEASANCE OF BONDS. (a) Any Bond shall be
deemed to be paid within the meaning of this Article and for all purposes of
this Indenture when (i) payment of the principal of such Bond, plus interest
thereon to the due date thereof (whether such due date is by reason of maturity
or upon redemption as provided herein), either (1) shall have been made or
caused to be made in accordance with the terms thereof, or (2) shall have been
provided for by irrevocably depositing with the Trustee, in trust and
irrevocably set aside exclusively for such payment, (A) moneys sufficient to
make such payment and/or (B) Government Obligations maturing as to principal and
interest in such amounts and at such times, without reinvestment, as will insure
the availability of sufficient moneys to make such payment, (ii) all necessary
and proper fees, compensation and expenses of the Trustee, any additional Paying
Agent and the Issuer pertaining to the Bonds with respect to which such deposit
is made shall have been paid or the payment thereof provided for to the
satisfaction of the Trustee, (iii) the Trustee is provided with an opinion of
Bond Counsel dated the date of the defeasance to the effect that the defeasance
of the Bonds pursuant to this Section 6.02 shall not adversely affect the
tax-exempt status of the interest on the Bonds, and (iv) the Trustee is provided
with a letter from each of Moody's and S&P to the effect that immediately
following defeasance of the Bonds, as provided in this Section 6.02, the rating
on the Bonds shall be the same or higher than the rating on the Bonds
immediately prior to such defeasance. At such time as a Bond shall be deemed to
be paid hereunder, as aforesaid, such Bond shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of any such
payment from such moneys or Government Obligations.
(b) Notwithstanding the foregoing, no deposit under
Section 6.02(a)(i)(2) above shall be deemed payment of such Bonds as aforesaid
until (i) proper notice of redemption of such Bonds shall have been previously
given in accordance with Article III of this Indenture or, in the event said
Bonds are not by their terms subject to redemption within the next succeeding
forty-five (45) days, until the Company shall have given the Trustee on behalf
of the Issuer, in form satisfactory to the Trustee, irrevocable instructions to
notify, as soon as practicable, the Owners of the Bonds that the deposit
required by Section 6.02(a)(i)(2) hereof has been made with the Trustee and that
such Bonds are deemed to have been paid in accordance
31
with this Section 6.02 and stating the maturity or redemption date upon which
moneys are to be available for the payment of the principal of such Bonds, plus
interest thereon to the due date thereof, plus premium, if any; or (ii) the
maturity of such Bonds.
(c) All moneys so deposited with the Trustee as provided
in this Section 6.02 may also be invested and reinvested, at the direction of
the Company, in Government obligations, maturing in the amounts and times as
hereinbefore set forth, and all income from all Government Obligations in the
hands of the Trustee pursuant to this Section 6.02 which is not required for the
payment of the Bonds and interest (and premium; if any) thereon with respect to
which such moneys shall have been so deposited shall be paid to the Company as
and when realized and collected.
(d) The Issuer hereby covenants that no deposit will
knowingly be made or accepted and no use knowingly made of any such deposit
which would cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148(a) of the Code.
(e) Notwithstanding any other provision of this
Indenture, all moneys or Government Obligations set aside and held in trust
pursuant to the provisions of this Section 6.02 for the payment of Bonds
(including interest and any premium thereon) shall be applied to and used solely
for the payment of the particular Bonds (including the interest and any premium
thereon) with respect to which such moneys or Government obligations have been
so set aside in trust.
(f) Anything in Article IX hereof to the contrary
notwithstanding, if moneys or Government Obligations have been deposited or set
aside with the Trustee pursuant to this Section 6.02 for the payment of Bonds
and such Bonds shall not have in fact been actually paid in full, no amendment
to the provisions of this Section 6.02 shall be made without the consent of the
Owner of each Bond affected thereby.
[End of Article VI]
32
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. EVENTS OF DEFAULT. If any of the following
events occur, it is hereby declared to constitute an "Event of Default" or
"Default" hereunder:
(a) A default in the payment of interest on any Bond
within three (3) days after such payment was due;
(b) A default in the due and punctual payment of the
principal of or premium, if any, on any Bond, whether at the
stated maturity thereof, or upon proceedings for redemption
thereof, or upon the , maturity thereof by declaration;
(c) A default in the performance or observance of any
other covenant, agreement or undertaking on the part of the
Issuer contained in this Indenture or in the Bonds and the
continuance thereof for a period of ninety (90) days after
written notice thereof given to the Issuer by the Trustee or
by the Owners of not less than twenty-five percent (25%) in
aggregate principal amount of Outstanding Bonds;
(d) A default in the due and punctual .payment by the
Company of the purchase price of any Bond tendered by the
Holder thereof pursuant to Section 3.04 of this Indenture, as
required by Section 4.2(f) of the Agreement; or
(e) The occurrence and continuance of any other
"Event of Default" under the Agreement.
Section 7.02. ACCELERATION. Upon the occurrence of any
Event of Default under Section 7.01, the Trustee may, and at the written request
of the owners of not less than twenty-five percent (25%) in aggregate principal
amount of Outstanding Bonds shall, by notice in writing delivered to the Issuer
and the Company, declare the principal of all Bonds and the interest accrued
thereon to the date of such acceleration immediately due and payable. Upon any
declaration of acceleration hereunder, the Trustee shall immediately declare the
payments required to be made by the Company under Section 4.2(a) of the
Agreement to be immediately due and payable in an amount sufficient to pay the
principal of all Outstanding Bonds and the accrued interest (and any premium)
thereon to the date of acceleration.
Section 7.03. OTHER REMEDIES; RIGHTS OF OWNERS OF BONDS.
(a) Upon the occurrence of an Event of Default, the Trustee may pursue any
available remedy at law or in' equity to enforce the payment of the principal
of, premium, if any, and interest on the Outstanding Bonds. Such remedies shall
include but not be limited to taking whatever action at law or in equity may
appear necessary or desirable to collect the payments on the Bonds and the sums
payable hereunder and under the Agreement then due and thereafter to become due,
or to enforce performance and observance of any obligation, agreement or
covenant of the Company under the Agreement, including, without limitation, the
remedies of a secured creditor under the Uniform Commercial Code of the State.
33
(b) If an Event of Default shall have occurred and be
continuing and if requested so to do by the Owners of twenty-five percent (25%)
in aggregate principal amount of Outstanding Bonds and provided the Trustee is
indemnified as provided in Section 8.01(b)(xiii) hereof, the Trustee shall be
obligated to exercise such one or more of the rights and powers conferred by
this Section and by Section 8.02 hereof, as the Trustee, being advised by
counsel, shall deem most expedient in the interests of the Owners of Bonds.
(c) No remedy by the terms of this Indenture conferred
upon or reserved to the Trustee (or to the Owners of Bonds) is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given to the Trustee or
to the Owners of Bonds hereunder or now or hereafter existing at law or in
equity.
(d) 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 of any such Default or acquiescence therein; such right
or power may be exercised from time to time as often as may be deemed expedient.
(e) No waiver of any Event of Default hereunder, whether
by the Trustee or by the Owners of Bonds, shall extend to or shall affect any
subsequent Event of Default or shall impair any rights or remedies consequent
thereon.
Section 7.04. RIGHT OF OWNERS OF BONDS TO DIRECT
PROCEEDINGS. Anything in this Indenture to the contrary notwithstanding, the
Owners of a majority in aggregate principal amount of the Outstanding Bonds
shall have the right, at any time, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the method and place of
conducting all proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of a receiver or
any other proceedings hereunder provided that such direction shall not be
otherwise than in accordance with the provisions of law and of this Indenture.
Section 7.05. APPOINTMENT OF RECEIVERS. Upon the
occurrence of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Trustee and of
the owners of Bonds under this Indenture, the Trustee shall be entitled, as a
matter of right, to the appointment of a receiver or receivers of the Trust
Estate and of the revenues, earnings, income, products and profits thereof,
pending such proceedings, with such powers as the court making such appointment
shall confer.
Section 7.06. WAIVER. Upon the occurrence of an Event of
Default, to the extent that such rights may then lawfully be waived, neither the
Issuer nor anyone claiming through or under it, shall set up, claim or seek to
take advantage of any appraisement, valuation, stay, extension or redemption
laws of any jurisdiction now or hereafter in force, in order to prevent or
hinder the enforcement of this Indenture, and the Issuer, for itself and all who
may claim through or under it, hereby waives, to the-extent that it lawfully may
do so, the benefit of all such laws.
Section 7.07. APPLICATION OF MONEYS. All moneys received
by the Trustee pursuant to any right given or action taken under the provisions
of this Article shall, after
34
payment of the costs and expenses of the proceedings resulting in the collection
of such moneys and of the expenses, liabilities and advances incurred or made by
the Trustee, be deposited in the Bond Fund and applied as follows:
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all such moneys shall be
applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the Bonds,
in the order of the maturity of the installments of such
interest and, if the amount available shall not be sufficient
to pay in full any particular installment, then to the payment
ratably, according to the amounts due on such installment, to
the persons - entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons entitled
thereto of the unpaid principal of and premium, if any, on any
of the Bonds which shall have become due (other than Bonds
matured or called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture)
and, if the amount available shall not be sufficient to pay in
full all Bonds due on any particular date, together with any
premium then due and owing thereon then to the payment ratably
according to the amount of principal and premium due on such
date, to the persons entitled thereto without any
discrimination or privilege; and
THIRD - To the payment to the persons entitled
thereto as the same shall become due of the principal,
premium, if any, and interest on the Bonds which may
thereafter become due and, if the amount available shall not
be sufficient to pay in full Bonds due *on any particular
date, together with interest and premium, if any, then due and
owing thereon, payment shall be made ratably according to the
amount of interest, premium and principal due on such date to
the persons entitled thereto without any discrimination or
privilege.
(b) If the principal of all the Bonds shall have become
due or shall have been declared due and payable, all such moneys shall be
applied to the payment of the principal and interest then due and unpaid upon
the Bonds, without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably, according
to the amounts due, respectively, for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable and if such declaration shall thereafter have been
rescinded and annulled under the provisions of this Article, then, in the event
that the principal of all the Bonds shall later become due or be declared due
and payable, the moneys shall be applied in accordance with the provisions of
Section 7.07(a) hereof.
(d) Whenever moneys are to be applied pursuant to the
provisions of this Section, such moneys shall be applied at such times, and from
time to time, as the Trustee shall
35
determine, having due regard for the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such funds, it shall
fix the date upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem appropriate of the
deposit with it of any such moneys and of the fixing of any such date, and shall
not be required to make payment to the Owner of any Bond until such Bond shall
be presented to the Trustee for appropriate endorsement or for cancellation if
fully paid.
(e) Whenever the principal of, premium, if any, and
interest on all Bonds have been paid under the provisions of this Section and
all expenses and charges of the Trustee have been paid or duly provided for, any
balance remaining in the Bond Fund shall be paid to the Company.
Section 7.08. REMEDIES VESTED IN TRUSTEE. All rights of
action (including the right to file proof of claims) under this Indenture or
under any of the Bonds may be enforced by the Trustee without the possession of
any of the Bonds or the production thereof in any trial or other proceeding
relating thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee without the necessity of joining as
plaintiffs or defendants any Owners of the Bonds, and any recovery of judgment
shall be for the equal and ratable benefit of the owners of the outstanding
Bonds.
Section 7.09. RIGHTS AND REMEDIES OF OWNERS OF BONDS. No
Owner of any Bond shall have any right to institute any suit, action or
proceeding at law or in equity for the enforcement of this Indenture or for the
execution of any trust hereof or for the appointment of a receiver or any other
remedy hereunder, unless (i) an Event of Default has occurred of which the
Trustee has been notified as provided in Section 8.01(b)(viii) hereof, or of
which by reason of such subsection it is deemed `to have notice, (ii) the Owners
of twenty-five percent (25%) in aggregate principal amount of Outstanding Bonds
shall have made a written request to the Trustee and shall have offered it
reasonable opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding and shall have offered
to the Trustee indemnity as provided in Section 8.01(b)(xiii), and (iii) the
Trustee shall thereafter fail or refuse to exercise the powers hereinbefore
granted, or to institute such action, suit or proceeding. Such notification,
request and offer of indemnity are hereby declared in every case at the option
of the Trustee to be conditions precedent to the execution of the powers and
trusts of this Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver or for any
other remedy hereunder; it being understood and intended that no one or more
Owners of the Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the Lien of this Indenture by their action or to enforce
any right hereunder except in the manner herein provided, and that all
proceedings at law or equity shall be instituted, had and maintained in the
manner herein provided and for the equal and ratable benefit of the Owners of
all Outstanding Bonds. However, nothing contained in this Indenture shall affect
or impair the right of any Owner of Bonds to enforce the payment of the
principal of and interest on any Bond at and after the maturity thereof, or the
obligation of the Issuer to pay the principal of and interest on each of the
Bonds issued hereunder to the respective owners thereof at the time and place,
from the source and in the manner in the Bonds expressed.
36
Section 7.10. TERMINATION OF PROCEEDINGS. In the event
that the Trustee shall have proceeded to enforce any right under this Indenture
by the appointment of a receiver or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely, then and in every such case, the Issuer, the Trustee and the Owners
of Bonds shall be restored to their former positions and rights hereunder,
respectively, with regard to the property subject to this Indenture, and all
rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 7.11. WAIVERS. The Trustee may in its discretion
waive any Event of Default hereunder and its consequences and rescind any
declaration of acceleration of principal, and shall do so upon the written
request of the Owners of (i) more than sixty-six and two-thirds percent
(66-2/3%) in aggregate principal amount of all Outstanding Bonds in respect of
which default in the payment of principal, premium or interest exists or (ii)
more than sixty-six and two-thirds percent (66-2/3%) in aggregate principal
amount of Outstanding Bonds in the case of any other Default; PROVIDED, HOWEVER,
that any Event of Default under subsection (a) or (b) of Section 7.01 hereof may
not be waived unless prior to such waiver, all arrears of principal, premium and
interest (other than principal of or interest on the Bonds which became due and
payable by declaration of acceleration) and all expenses of the Trustee and any
additional Paying Agent in connection with such Event of Default shall have been
paid or provided for to take satisfaction of the Trustee. In case of any waiver
or rescission described above, or in case any proceeding taken by the Trustee on
account of any such Event of Default shall have been discontinued or concluded
or determined adversely, then and in every such case the Issuer, the Trustee and
the Owners of Bonds shall be restored to their former positions and rights
hereunder, respectively, but no such waiver or rescission shall extend to any
subsequent or other Event of Default, or impair any right consequent thereon.
[End of Article VIII]
37
ARTICLE VIII
THE TRUSTEE
Section 8.01. APPOINTMENT OF TRUSTEE AND ACCEPTANCE OF
DUTIES. (a) Pittsburgh National Bank is hereby appointed as Trustee and Paying
Agent. The Trustee shall signify its acceptance of the duties and obligations of
the Trustee, subject to the terms and conditions set forth in subsection (b) of
this Section 8.01, by executing this Indenture.
(b). The acceptance by the Trustee of the trusts imposed
upon it by this Indenture and its agreement to perform said trusts is subject to
the following express terms and conditions, and no implied covenants or
obligations shall be read into this Indenture against the Trustee:
(i) Prior to the occurrence of an Event of Default,
the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred and has not been cured,
the Trustee shall exercise such rights and powers vested in it
by this Indenture and by the Agreement and shall use the same
degree of care and skill in their. exercise as a reasonable
and prudent corporate trustee under a trust agreement would
use, under the circumstances.
(ii) The Trustee may execute any of the trusts or
powers conferred upon it in this Indenture and perform any of
its duties hereunder by or through attorneys, agents or
employees., shall be entitled to act upon the opinion or
advice of its counsel concerning all matters with respect to
the trust and its duties hereunder and may in all cases pay
from the appropriate Fund as provided herein such reasonable
compensation to all such attorneys and agents as may
reasonably be employed in connection with the trust hereunder.
The Trustee may act upon an opinion of Independent Counsel and
shall not be responsible for any loss or damage resulting from
any action taken or omitted to be taken in good faith in
reliance upon such opinion of Independent Counsel.
(iii) The Trustee shall not be responsible for any
recital herein or in the Bonds (except in respect of the
Certificate of Authentication of the Trustee endorsed on the
Bonds), for the validity of the execution by the Issuer of
this Indenture, or any supplements hereto or any instruments
of further assurance in connection herewith, for the
sufficiency of the security for the Bonds, for any value of or
title to any Property securing the Bonds or for the
performance or observance of any covenants, conditions or
agreements on the part of the Issuer under this Indenture or
on the part of the Company under the Agreement.
(iv) The Trustee may become the owner of Bonds
secured hereby with the same rights which it would have if it
were not the Trustee.
(v) The Trustee shall be protected in acting in good
faith upon any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper
38
or document believed by it to be genuine and to have been
signed or sent by the proper Person or Persons.
(vi) The Trustee, without further investigation, may
rely upon the information and judgment of the Issuer contained
in:
(1) a certificate, signed by an Authorized
Representative of the Issuer,
(x) as to the existence or nonexistence of
any fact or facts stated therein;
(y) as to the sufficiency or validity of any
instrument, paper or proceeding, other than a
resolution of the Issuer; and
(z) prior to the occurrence of an Event of
Default of which the Trustee has been notified as
provided in Section 8.01(b)(viii) hereof or of which
by reason of said Section the Trustee is deemed to
have notice, as to the necessity or appropriateness
of any particular dealing, transaction or action; and
(2) a certificate, signed by an Authorized
Representative of the Issuer, as to the due adoption and
validity of a resolution of the Issuer.
(vii) The permissive right of the Trustee to do or
refrain from doing things enumerated in this Indenture shall
not be construed as a duty and the Trustee shall not be
answerable for other than its gross negligence or willful
misconduct, subject to the limitation of paragraph (i) of this
subsection (b).
(viii) The Trustee shall not be required to take
notice or be deemed to have notice of any Event of Default
hereunder except for Events of Default specified in
subsections (a) or (b) of Section 7.01 hereof, unless the
Trustee shall be specifically notified in writing of such
Event of Default by the Issuer or by the Owners of at least
twenty-five percent (25%) in aggregate principal amount of
Outstanding Bonds, and all notices or other instruments
required by this Indenture to be delivered to the Trustee,
must, in order to be effective, be delivered at the Principal
Corporate Trust Office of the Trustee, and in the absence of
such notice so delivered the Trustee may conclusively assume
there is no Default except as aforesaid.
(ix) All moneys received by the Trustee shall be held
in trust in the manner and for the purposes for which they
were received but need not be segregated from other moneys
held by the Trustee except to the extent expressly required by
this Indenture or by law. The Trustee shall not be liable for
interest on any moneys received hereunder.
(x) At any reasonable time, the Trustee and its duly
authorized agents, experts and representatives may (but shall
not be obligated to) inspect any of the
39
security for the Bonds and any books, papers and records of
the Issuer pertaining to the Agreement or the Bonds.
(xi) The Trustee shall not be required to give any
bond or surety in respect of the execution of the trusts and
powers intended to be conferred upon it in this Indenture or
otherwise in respect of the premises.
(xii) The Trustee may (but shall not be obligated to)
demand, as a condition precedent to the authentication of any
Bonds, the withdrawal of any moneys, the release of any
Property or the taking of any other action contemplated by
this Indenture, any certificates, opinions, appraisals or
other information or any corporate action or evidence thereof
(in addition to any other prerequisites required in any other
Section of this Indenture) which the Trustee may reasonably
deem desirable for the purpose of establishing the right of
the Issuer to the authentication of the Bonds, the withdrawal
of the moneys, the release of the Property or the taking of
such other action.
(xiii) Before taking any action under this Indenture,
the Trustee may require that satisfactory security or
indemnity be furnished to it for the reimbursement of all
expenses to which it may be put and to protect it against all
liability, except liability which may be adjudicated to have
resulted from its own negligence, misconduct or willful
default by reason of any action so taken.
(xiv) The Trustee shall not be personally liable for
any debts contracted, for damages arising from injury to
Persons or damage to Property, for salaries or for
non-fulfillment of contracts during any period when it may be
in the possession of or managing any Property provided for in
this Indenture, unless such have resulted from its negligence
or willful misconduct.
(xv) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,. opinion,
report, notice, request, direction, consent, order, bond,
debenture or other paper or documents, but the Trustee, in its
discretion may make such further inquiry or investigation, and
it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney.
(xvi) The Trustee may at any time request written
instructions from the Holders of the Bonds with respect to the
interpretation of this Indenture or any action to be taken,
suffered or not taken hereunder and may withhold action
hereunder until it shall have received such written
instructions from the Holders of a majority in principal
amount of the Bonds at the time Outstanding (or, if no Bonds
shall be Outstanding, of a majority in principal amount of the
Bonds Outstanding as of the most recent time any Bonds were
Outstanding). Notwithstanding any other provision herein and
whether or not an Event of Default has occurred, the Trustee
shall incur no, liability in so withholding any such action or
with respect to any such action taken, suffered or not taken
in accordance with such instructions.
40
(xvii) If at least ten percent (10%) of the Holders
in the principal amount of Bonds so request in writing, the
Trustee shall obtain an opinion from Bond Counsel as to the
current tax-exempt status of the Bonds.
(c) None of the provisions of this Section 8.01 shall
apply to or limit the Trustee's mandatory obligations under Section 7.02 hereof.
Section 8.02. FEES, CHARGES AND EXPENSES OF TRUSTEE. The
Trustee shall be entitled to payment of reasonable fees for its services
rendered hereunder and reimbursement of all advances, counsel fees and other
expenses reasonably made or incurred by the Trustee in connection with such
services. Upon the occurrence of an Event of Default, but only upon the
occurrence of an Event of Default, the Trustee shall have a first Lien with
right of payment prior to payment on account of principal of and interest on any
Bond upon the Trust Estate (exclusive of any moneys set aside for the payment of
Bondholders) for the foregoing fees, charges and expenses of the Trustee. The
Issuer shall have no liability to pay any fees, charges or other expenses of the
Trustee hereinabove mentioned except from the amounts pledged under this
Indenture.
Section 8.03. INTERVENTION BY TRUSTEE. In any judicial
proceeding to which the Issuer is a party, the Trustee may, and if so requested
in writing by the Owners of at least twenty-five percent (25%) in aggregate
principal amount of the Bonds then Outstanding shall, intervene, to the extent
permitted by law, on behalf of Bondholders. The Trustee shall not be required to
intervene without receiving indemnity from the Bondholders for such undertaking.
Section 8.04. NOTICE TO OWNERS OF BONDS IF DEFAULT OCCURS.
If an Event of Default occurs of which the Trustee has been notified as provided
in Section 8.01(b)(viii) hereof,- or of which by said subsection it is deemed to
have notice, then the Trustee shall promptly give notice thereof to the Issuer,
the Company and to the owner of each Bond.
Section 8.05. MERGER OR CONSOLIDATION OF TRUSTEE. Any
corporation or association into which the Trustee may be converted or merged,
with which it may be consolidated or to which it may sell or transfer its trust
business and assets as a whole or substantially as a whole, or any corporation
or association resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party shall be licensed to accept the trusts
created hereby and, ipso facto, shall be and become successor Trustee hereunder
and be and become vested with all the trusts, powers, discretions, immunities,
privileges and all other matters vested in its predecessor without the execution
or filing of any instrument or any further act, deed or conveyance on the part
of any of the parties hereto.
Section 8.06. RESIGNATION BY THE TRUSTEE. The Trustee and
any successor Trustee may, at any time, resign from the trusts hereby created
and be discharged of its duties and obligations under this Indenture by giving
not less than thirty (30) days written notice to the Company and the Issuer and,
by first-class mail, to each registered Holder of Bonds then Outstanding. Such
resignation shall take effect upon the date specified in such notice, provided,
however, that in no event shall such a resignation take effect until a successor
Trustee has been appointed pursuant to Section 8.08 hereof. The Trustee may
petition a court to have a successor Trustee appointed hereunder.
41
Section 8.07. REMOVAL OF THE TRUSTEE. The Trustee may be
removed at any time without cause by an instrument which (i) is signed by the
Owners of not less than fifty percent (50%) in aggregate principal amount of the
Bonds then Outstanding, (ii) specifies the date on which such removal shall take
effect and the name and address of the successor Trustee and (iii) is delivered
to the Trustee, the Issuer and the Company. The Trustee may also be removed at
any time for any breach of trust or for acting or proceeding, in violation of,
or for failing to act or proceed in accordance with, any provision of this
Indenture by any court of competent jurisdiction upon the application by the
Issuer, the Company or the Owners of not less than twenty-five percent (25%) in
aggregate principal amount of the Bonds then Outstanding.
Section 8.08. APPOINTMENT OF SUCCESSOR TRUSTEE BY THE
BONDHOLDERS; TEMPORARY TRUSTEE. (a) In case the Trustee hereunder shall resign,
be removed, be dissolved, be in the course of dissolution or liquidation or
otherwise become incapable of acting hereunder, or in case it shall be taken
under the control of any public officer or officers or of a receiver appointed
by a court, a successor Trustee may be appointed by the owners of not less than
fifty percent (50$) in aggregate principal amount of the Bonds then Outstanding
by an instrument signed by such Bondholders and delivered to such successor
Trustee, the predecessor Trustee, the Issuer and the Company.
(b) In case of the occurrence of any event affecting the
Trustee hereunder described in subsection (a) of this Section 8.08, the Issuer,
by an instrument signed by an Authorized Representative of the Issuer, shall
promptly appoint a temporary Trustee to fill such vacancy until a successor
Trustee shall be appointed by the Bondholders in the manner provided in
subsection (a) of this Section 8.08. Such instrument appointing such temporary
Trustee by the Issuer shall be delivered to the temporary Trustee so appointed,
to the predecessor Trustee and to the Company. Any such temporary Trustee
appointed by the Issuer shall immediately and without further act be superseded
by any successor Trustee appointed by the Bondholders.
(c) Any Trustee appointed pursuant to the provisions of
this Section 8.08 shall be a trust company, bank or national banking association
which is authorized to exercise the corporate trust powers intended to be
conferred upon it by this Indenture and which has a combined capital and surplus
of at least $50,000,000.
Section 8.09. CONCERNING SUCCESSOR TRUSTEES. (a) Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
its predecessor Trustee and to the Issuer an instrument accepting such
appointment hereunder. Thereupon, such successor Trustee, without any further
act, deed or conveyance, shall become fully vested with all the Properties,
rights, powers, trusts, duties and obligations of its predecessor Trustee.
(b) Every predecessor Trustee shall, upon the written
request of the Issuer or the successor Trustee, execute and deliver an
instrument transferring to such successor Trustee all the Properties, rights,
powers and trusts of such predecessor Trustee hereunder and under the Agreement.
Every predecessor Trustee shall deliver to its successor Trustee all securities
and moneys held by it as Trustee hereunder. If any instrument from the Issuer
shall be requested by any successor Trustee to more fully vest the successor
trustee with the Properties, rights, powers and duties vested hereby or intended
to be vested hereunder, any and all such instruments shall be executed,
acknowledged and delivered by the Issuer.
42
(c) The resignation of any Trustee and the instrument or
instruments removing any Trustee and appointing a successor Trustee hereunder,
together with all other instruments provided for in this Article VIII, shall be
filed and/or recorded by the successor Trustee in each recording office where
this Indenture shall have been filed and/or recorded, if any.
Section 8.10. SUCCESSOR TRUSTEE AS CUSTODIAN OF FUNDS AND
PAYING AGENT. In the event of a change of Trustees, the predecessor Trustee
shall cease to be (i) custodian of the Funds created pursuant to Section 4.01
hereof and of all other moneys, Properties, rights and assets constituting the
Trust Estate and (ii) bond registrar and the successor Trustee shall become such
custodian, bond registrar and Paying Agent. Every predecessor Trustee shall
deliver to its successor Trustee all books of account, the registration books,
the list of Bondholders and all other records, documents and instruments
relating to its duties as such custodian, bond registrar and Paying Agent.
Section 8.11. TRUSTEE TO EXERCISE POWERS OF STATUTORY TRUSTEE.
The Trustee shall be and is hereby vested with all of the rights, powers and
duties of a trustee which could be appointed by Bondholders pursuant to the Act
or any other provision of law, and the right of Bondholders to appoint a trustee
pursuant to the Act or any other provision of law is hereby abrogated, to the
extent permitted by law.
Section 8.12. NOTICE TO RATING AGENCIES. The Trustee shall
provide Moody's and S&P with prompt written notice following the effective date
of such event of (i) any successor Trustee, (ii) any material amendments to this
Indenture or the Agreement, or (iii) the defeasance or redemption in whole of
the Bonds. Any such notice to Moody's shall be sent to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Transactions Group. Any such notice
to S&P shall be sent to ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Steel
Industry Analyst - Corporate Finance.
Section 8.13. LIMITATION ON TRUSTEE'S RESPONSIBILITIES
RESPECTING ARBITRAGE. Nothwithstanding any provision of this Indenture to the
contrary the Trustee shall not be liable or responsible for any calculation or
determination which may be required in connection with or for the purpose of
complying with Section 148 of the Code including, without limitation, the
calculation of amounts required to be paid to the United States under the
provisions of such Section 148 of the Code, the maximum amount which may be
invested in "nonpurpose obligations" as defined in the Code and the fair market
value of any investments made hereunder; and the sole obligation of the Trustee
with respect to investments of funds hereunder shall be to invest the moneys
received by the Trustee as provided herein pursuant to the written instructions
of the Company.
[End of Article VIII]
43
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section. 9.01. SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT
OF BONDHOLDERS. (a) Without the consent of or notice to any of the Bondholders,
the Issuer and the Trustee may, with the consent of the Company, enter into one
or more Supplemental Indentures, for any one or more of the following purposes:
(i) To cure any ambiguity, inconsistency or omission
in this Indenture or to cure, correct or supplement any
defective provision of this Indenture in such manner as shall
not impair the security hereof or adversely affect the
Bondholders;
(ii) To grant to or confer upon the Trustee for the
benefit of the Bondholders any additional rights, remedies,
powers or authority that may lawfully be granted to or
conferred upon the Bondholders or the Trustee;
(iii) To add to the covenants and agreements of the
Issuer in this Indenture other covenants and agreements to be
observed by the Issuer;
(iv) To more precisely identify the Trust Estate;
(v) To subject to the Lien of this Indenture
additional Property;
(vi) To evidence the appointment of a separate
Trustee or a Co-Trustee or the succession of a new Trustee
hereunder; or
(vii) To provide for the issuance of Additional
Bonds.
(b) The Trustee may rely upon an opinion of Independent
Counsel as conclusive evidence that any such Supplemental Indenture complies
with the foregoing conditions and provisions.
Section. 9.02. SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF
BONDHOLDERS. (a) The Holders of not less than sixty-six and two-thirds percent
(66-2/3%) in aggregate principal amount of the Bonds then Outstanding shall have
the right, from time to time, to consent to and approve the execution by the
Issuer and the Trustee of such Supplemental Indentures as shall be deemed
necessary and desirable by the Issuer for the purpose of modifying, altering,
amending, adding to or rescinding any of the terms or provisions contained in
this Indenture, in any Supplemental Indenture or in the Bonds; provided,
however, that nothing contained in this Section 9.02 shall permit:
(i) A change in the terms of redemption or maturity
of the principal of or the interest on any Outstanding Bond or
a reduction in the principal amount or redemption price of any
Outstanding Bond or the rate of interest thereon without the
consent of the Holder of each Bond;
44
(ii) The creation of a Lien upon the Trust Estate
ranking prior to or on a parity with the Lien created by this
Indenture, or any part thereof;
(iii) A preference or priority of any Bond or Bonds
over any other Bond or Bonds;
(iv) A reduction in the aggregate principal amount of
the Bonds required (a) under Article IX for consent to such
Supplemental Indenture or (b) under Article X for any
modification or waiver of the provisions of the Agreement;
(v) The deprivation of the Holder of any Outstanding
Bond of the Lien of the Indenture; or
(vi) The release of the Lien on any of the Trust
Estate.
(b) If at any time the Issuer shall request the Trustee
to enter into a Supplemental Indenture for any of the purposes enumerated in
Section 9.02(a) hereof, the Trustee, upon being satisfactorily indemnified with
respect to expenses, shall cause notice of the proposed execution of a
Supplemental Indenture to be mailed, by first-class mail, to the Company and all
registered owners of Bonds then Outstanding at their addresses shown on the
registration books kept by the Trustee. Such notice shall briefly summarize the
contents of `the proposed Supplemental Indenture and shall state that copies
thereof are on file at the office of the Trustee for inspection by all
Bondholders. The Trustee shall not, however, be subject to any liability to any
Bondholder by reason of its failure to mail the notice required by this Section
9.02(b).
(c) If, within such period after the mailing of the
notice required by Section 9.02(b) hereof as the Issuer shall prescribe with the
approval of the Trustee, the Issuer shall deliver to the Trustee and the Company
an instrument or instruments executed by the Holders of not less than sixty-six
and two-thirds percent (66-2/3%) in aggregate principal amount of the Bonds then
outstanding, referring to the proposed Supplemental Indenture as described in
such notice and consenting to and approving the execution thereof, the Trustee
shall execute such Supplemental Indenture.
(d) If the Holders of not less than sixty-six and
two-thirds percent (66-2/3%) aggregate principal amount of the Bonds Outstanding
at the time of the execution of any such Supplemental Indenture shall have
consented to `and approved in writing the execution thereof as herein provided,
no Holder of any Bond shall have any right to object to any of the terms and
provisions contained therein, to question in any manner the propriety of the
execution thereof or to enjoin or restrain the Trustee or the Issuer from
executing the same or from taking any action pursuant to the provisions thereof.
(e) The Trustee may rely upon an opinion of Independent
Counsel as conclusive evidence that (i) any Supplemental Indenture entered into
by the Issuer and the Trustee and (ii) the evidence of requisite Bondholder
consent thereto comply with the provisions of this Section 9.02.
45
Section 9.03. BOND COUNSEL OPINION; CONSENT OF COMPANY TO
SUPPLEMENTAL INDENTURES. Notwithstanding anything contained in this Indenture to
the contrary, no Supplemental Indenture shall become effective unless and until
(a) the Company shall have consented in writing to the execution and delivery of
such Supplemental Indenture and (b) the Trustee shall have received an
unqualified opinion of Bond Counsel, satisfactory to the Trustee; that the
execution, delivery and performance of the Supplemental Indenture will not
adversely affect the exclusion from gross income of the interest payable on the
Bonds for Federal income tax purposes or the exemption of the Bonds and the
income therefrom from taxation by the State except inheritance, estate and
transfer taxes.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURES. Any
Supplemental Indenture executed in accordance with the provisions of this
Article IX shall thereafter form a part of this Indenture. All the terms and
conditions contained in any such Supplemental Indenture shall be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.05. MODIFICATIONS BY UNANIMOUS ACTION.
Notwithstanding anything contained in this Article IX, the rights and
obligations of the Issuer and of the Holders of the Bonds and the terms and
provisions of the Indenture or any Supplemental Indenture may be modified or
amended in any respect upon the adoption of a Supplemental Indenture by the
Issuer and the Trustee with the prior written consent of the Company and the
Holders of all of the Outstanding Bonds, the consent of such Bondholders to be
given as provided in Section 11.01 of this Indenture.
[End of Article IX]
46
ARTICLE X
AMENDMENT OF AGREEMENT
Section 10.01. AMENDMENTS TO AGREEMENT NOT REQUIRING
CONSENT OF BONDHOLDERS. Without the consent of or notice to any of the
Bondholders, the Issuer may enter into, and the Trustee may consent to, any
amendment, change or modification of the Agreement as may be required (i) by the
provisions thereof or of this Indenture, (ii) for the purpose of curing any
ambiguity or formal defect or omission therein, (iii) to enter into a
Supplemental Indenture as provided herein, (iv) in connection with any other
change therein which, in the sole judgment of the Trustee, does not adversely
affect the interests of the Trustee or the Holders of the Bonds or (v) to
provide for the issuance of Additional Bonds. The Trustee may rely upon an
opinion of Independent Counsel as conclusive evidence that any such amendment,
change or modification complies with the provisions of this Section 10.01.
Section 10.02. AMENDMENTS TO AGREEMENT REQUIRING CONSENT OF
BONDHOLDERS. Except for amendments, changes, or modifications as provided in
Section 10.01 hereof, neither the Issuer nor the Trustee shall consent to any
amendment, change or modification of the Agreement without the mailing of notice
to and the written approval or consent of the Holders of not less than sixty-six
and two-thirds percent (66-2/3%) in aggregate principal amount of the Bonds at
the time outstanding, such approval or consent to be procured and given in the
manner set forth in Section 11.01 hereof; provided, however, that nothing
contained in this Section 10.02 shall permit any amendment, change or
modification of the Agreement that would permit the termination or cancellation
of the Agreement (except as otherwise set forth therein)-or a change in the
provisions of Section 4.2(a) or 4.2(f)(ii) of the Agreement without the consent
of the Owners of all of the Outstanding Bonds. The Trustee may rely upon an
opinion of Independent Counsel as conclusive evidence that any such amendment,
change or modification and the evidence of requisite Bondholder consent comply
with the requirements of this Section 10.02.
[End of Article X]
47
ARTICLE XI
MISCELLANEOUS
Section 11.01. CONSENT OF BONDHOLDERS. (a) Any consent,
request, direction, approval, objection or other instrument required or
permitted by this Indenture to be signed and executed by the Bondholders may be
in any number of writings of similar tenor and may be signed or executed by such
Bondholders in person or by agent appointed in writing. Proof of the execution
of any such consent, request, direction, approval, objection or other
instrument, of the writing appointing any such agent and of the ownership of
Bonds, if made in the following manner, shall be sufficient for any of the
purposes of this Indenture and may be conclusively relied ` upon by the Trustee
with regard to any action taken thereunder:
(i) The fact and date of the execution by any
Bondholder or his attorney of such instrument may be proved by
(A) the certificate (which need not be acknowledged or
verified) of an officer of a bank or trust company
satisfactory to the Trustee or of any notary public or other
officer authorized to take acknowledgments of deeds to be
recorded in the state in which he purports to act that the
person signing such instrument acknowledged to him the
execution thereof on such date or (B) an affidavit of a
witness of such execution, duly sworn to before such notary
public or other officer. The authority of the person, or
persons executing any such instrument on behalf of a corporate
Bondholder may be established without further proof if such
instrument is signed by a person purporting to be the
President or a Vice President of such corporation; affixed
with a corporate seal and attested to by a person purporting
to be its Secretary or an Assistant Secretary.
(ii) The ownership of Bonds, the amount, numbers and
other identification and the date of holding of the same shall
be proved by the registration books kept by the Trustee as
bond registrar.
(a) Any request, consent or vote of the Owner of any Bond
shall bind all future owners of such Bond with respect to anything done,
suffered to be done or omitted to be done by the Issuer or the Trustee in
accordance therewith, unless and until such request, consent or vote is revoked
by the filing with the Trustee of a writing, signed and executed by the Owner of
the Bond, in form and substance and within such time as shall be satisfactory to
the Trustee.
Section 11.02. LIMITATION OF RIGHTS. With the exception of
rights herein expressly conferred, nothing expressed or mentioned in or to be
implied from this Indenture or the Bonds is intended or shall be construed to
give to any Person, other than the parties hereto, the Company and the Holders
of the Bonds, any right, remedy or claim under or with respect to this Indenture
or any covenants, conditions and provisions herein contained. This Indenture and
all of the covenants, conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto, the Company and the
Holders of the Bonds as herein provided.
48
Section 11.03. SEVERABILITY. (a) If any provision of this
Indenture shall, for any reason, be held to be or shall in fact be inoperative
or unenforceable in any particular case, such circumstance shall not render the
provision in question inoperative or unenforceable in any other case or
circumstance or render any other provision herein contained inoperative or
unenforceable.
(b) The invalidity of any one or more phrases, sentences,
clauses, paragraphs or Sections in this Indenture shall not affect the remaining
portions of this Indenture.
Section 11.04. NOTICES. (a) Except as otherwise expressly
provided herein, all notices, certificates or other communications hereunder
shall be in writing, shall be sufficiently given when delivered and, if
delivered by mail, shall be sent by registered mail, postage prepaid, return
receipt requested, addressed as follows:
To the Issuer:
--------------
City of Weirton,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: Mayor
To the trustee:
---------------
Pittsburgh National Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: Manager
Corporate Trust Department
To the Company:
---------------
Weirton Steel Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: President
(b) A duplicate copy of each notice, certificate or other
communication given hereunder by any person listed above shall also be given to
the others. The Issuer, the Company and the Trustee may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
Section 11.05. COUNTERPARTS. This Indenture may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section 11.06. APPLICABLE LAW. This Indenture shall be
governed exclusively by the applicable laws of the State.
49
Section 11.07. NO RECOURSE. All covenants, stipulations,
promises, agreements and obligations of the Issuer contained in this Indenture,
the Agreement and all other documents and instruments connected herewith and
therewith (collectively, the "Financing Documents") shall be deemed to be the
covenants, stipulations, promises, agreements and obligations of the Issuer and
not of any member, officer, employee or agent of the Issuer in his individual
capacity, and no recourse under or upon any obligation, covenant or agreement
contained in the Financing Documents or otherwise based upon or in respect to
the Financing Documents, or any documents supplemental thereto, or for any of
the Bonds or for any claim based thereon or otherwise in respect thereof, shall
be had against any past, present or future members, officers, employees or
agents, as such, of the Issuer or any successor public corporation or political
subdivision thereof or any person executing the Financing Documents, either
directly or through the Issuer or any successor public corporation or political
subdivision thereof, it being expressly understood that the Financing Documents
to which the Issuer is a party are solely corporate obligations, and that no
such personal liability whatever shall attach to, or shall be incurred by, any
such member, officer, employee or agent of the Issuer or any successor public
corporation or political subdivision thereof or any person executing the
Financing Documents because of the creation of the indebtedness thereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in the Financing Documents or implied therefrom; and that any and all
such personal liability of, and any and all such rights and claims against,
every such member, officer, employee or agent because of the indebtedness
thereby authorized, or under or by reason of the obligations, covenants or
agreements contained in the Financing Documents or implied therefrom are, to the
extent permitted by law, expressly waived and released as a condition of, and as
consideration for, the execution of the Financing Documents.
Section 11.08. SURVIVAL. This Indenture shall remain in full
force and effect until terminated pursuant to Article VI hereof.
Section 11.09. TABLE OF CONTENTS AND SECTION HEADINGS NOT
CONTROLLING. The Table of Contents and the headings of the several Sections of
this Indenture have been prepared for convenience of reference only and shall
not control, affect the meaning of or be taken as an interpretation of any
provision of this Indenture.
Section 11.10. BINDING EFFECT. This Indenture shall be binding
upon the Issuer and the Trustee and their respective successors and assigns.
IN WITNESS WHEREOF, the Issuer has caused these presents to be
signed in its name and behalf by its Mayor and, to evidence its acceptance of
the Trust hereby created, the Trustee has caused these presents to be signed in
its name and behalf by its duly authorized representative, all as of the date
first above written.
CITY OF WEIRTON, WEST VIRGINIA
By
--------------------------
Mayor
(SEAL)
50
ATTEST:
-------------------------------
Clerk
PITTSBURGH NATIONAL BANK
As Trustee
By
----------------------------
Authorized Officer
(SEAL)
ATTEST:
---------------------
--------------
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ )
: ss.:
COUNTY OF ▇▇▇▇▇▇▇ )
The undersigned, a Notary Public, does hereby certify that
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ whose names as Mayor and City Clerk,
respectively, of the City of Weirton, West Virginia, are signed to the foregoing
Indenture of Trust, and who are each known to me and known to such officials,
acknowledged before me on this day under oath that, being informed of the
contents of the foregoing, they, in their capacities as such officials of the
City of Weirton, West Virginia, and with full authority, executed and delivered
the same voluntarily for and as the act of the City of Weirton, West Virginia on
the day the same bears date.
Given under my hand and seal of office, this 1st day of
November, 1989.
--------------------------
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
On this 1st day of November, 1989, before me personally came
▇. ▇. ▇▇▇▇▇▇, to me personally known who, being by me duly sworn, did depose and
say that he resides at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; that he is Vice
President of PITTSBURGH NATIONAL BANK, the banking association described in and
which executed the within Indenture of Trust; and that he signed his name
thereto by authority of such banking association.
--------------------------
Notary Public
EXHIBIT A
(Form of Face of Bond)
REGISTERED REGISTERED
No. R- $
CITY OF WEIRTON, WEST VIRGINIA
POLLUTION CONTROL REVENUE REFUNDING BOND
(Weirton Steel Corporation Project) Series 1989
BOND RATE MATURITY DATE DATED DATE CUSIP
8 5/8% November 1, 2014 948804 AC3
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
CITY OF WEIRTON, WEST VIRGINIA (the "Issuer"), a public
corporation and an incorporated municipality duly organized and existing under
the Constitution and laws of the State of West Virginia (the "State"),
acknowledges itself indebted and for value received promises to pay, solely from
the sources and as hereinafter provided, to the Registered Owner named above, or
registered assigns, the Principal Amount set forth above, on the Maturity Date
set forth above, unless redeemed prior thereto as hereinafter provided, and in
like manner to pay interest on said Principal Amount at the Bond Rate set forth
above, payable semiannually on the first days, of May and November in each year
commencing May 1, 1990, until the Issuer's obligation with respect to such
Principal Amount has been discharged.
Interest on this bond shall be payable from the Bated Date set
forth above and shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The principal of and premium, if any, on this bond is
payable in lawful money of the United States of America upon presentation and
surrender of this bond at the principal corporate trust office of Pittsburgh
National Bank, as trustee (together with its successors in trust, the
"Trustee"), or at the duly designated office of any successor Trustee under an
indenture of trust, dated as of November 1, 1989, between the Issuer and the
Trustee (which indenture, as from time to time amended and supplemented, is
hereinafter referred to as the "Indenture"). Payment of interest on this bond
shall be made on each interest payment date (the "Interest Payment Date") to the
person in whose name this bond is registered at the close of business on the
fifteenth day of the month next preceding any Interest Payment Date (the "Record
Date"), as further provided in the Indenture, and shall be paid by check mailed
by the Trustee to such registered owner at his address as it appears on the
registration books of the Issuer maintained by the Trustee as bond
registrar or at such other address as is furnished to the Trustee in writing by
such registered owner.
Reference is hereby made to the further provisions of this
bond set forth on the reverse side hereof, which provisions shall for all
purposes have the same effect as if set forth on the face hereof.
This bond is issued pursuant to and in full compliance with
the Constitution and laws of the State of West Virginia, and pursuant to
proceedings of the Issuer authorizing the execution and delivery of, among other
things, this bond and the Indenture.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed precedent to
and in the authorization, execution and delivery of the Indenture and the
issuance .of this bond do exist, have happened and have been performed in due
time, form and manner as required by law, and that this bond and the issue of
which it forms a part, together with all other obligations of the Issuer, do not
exceed or violate any constitutional or statutory limitations.
THIS BOND AND THE INTEREST HEREON ARE A LIMITED OBLIGATION OF
THE ISSUER PAYABLE SOLELY FROM THE MONEYS PLEDGED THEREFOR AND SHALL NOT BE A
DEBT OF THE STATE OF WEST VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF,
INCLUDING THE CITY OF WEIRTON, WEST VIRGINIA, AND NEITHER THE STATE OF WEST
VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE CITY OF WEIRTON,
WEST VIRGINIA, SHALL BE LIABLE HEREON. NEITHER THE FAITH AND CREDIT NOR THE
TAXING POWER OF THE ISSUER, THE STATE OR ANY OTHER POLITICAL SUBDIVISION OF THE
STATE IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF THIS BOND OR THE INTEREST
HEREON. THIS BOND AND THE INTEREST HEREON SHALL NOT BE A GENERAL OBLIGATION OF
THE ISSUER OR A CHARGE UPON THE TAX REVENUES OF THE ISSUER OR UPON ANY OTHER
REVENUES OR PROPERTY OF THE ISSUER NOT SPECIFICALLY PLEDGED THERETO. NO MEMBER
OR OFFICER OF THE ISSUER OR ANY PERSON EXECUTING THIS BOND ON BEHALF OF THE
ISSUER SHALL BE PERSONALLY LIABLE HEREON.
This bond shall not be valid, become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
Certificate of Authentication hereon shall have been signed by the Trustee.
2
IN WITNESS WHEREOF, CITY OF WEIRTON, WEST VIRGINIA, has caused
this bond to be executed in its name by the manual or facsimile signature of its
Mayor, has caused its corporate seal or a facsimile thereof to be affixed,
impressed, imprinted or otherwise reproduced hereon and has caused such
signature and such seal to be attested to by the manual or facsimile signature
of its Clerk all on and as of the above Dated Date.
CITY OF WEIRTON, WEST VIRGINIA
By
-----------------------------------
Mayor
(SEAL)
ATTEST:
------------------------------
Clerk
(To Be Endorsed on All Bonds)
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This bond is one of the Bonds of the series therein specified
described in the within-mentioned Trust Indenture.
Pittsburgh National Bank, as Trustee
By
--------------------------------------
Authorized Officer
3
[Reverse of Bond]"
CITY OF WEIRTON, WEST VIRGINIA
POLLUTION CONTROL REVENUE REFUNDING BOND
(Weirton Steel Corporation Project) Series 1989
This bond is one of a duly authorized series of bonds limited
in aggregate principal amount to FIFTY-SIX MILLION THREE HUNDRED THOUSAND
DOLLARS ($56,300,000) (the "Series 1989 Bonds"), issued and authorized to be
issued for the purpose of paying the cost of refunding certain of the Issuer's
outstanding pollution control revenue bonds (the "Prior Bonds") issued to
finance (or refinance) the acquisition, construction and installation of certain
pollution control equipment (the "Project") presently owned by, or leased to,
Weirton Steel Corporation (the "Company") and located in the Company's steel
manufacturing plant in the City of Weirton, West Virginia, so as to promote the
job opportunities, health, general prosperity and welfare of the inhabitants of
the State of West Virginia.
The Series 1989 Bonds are all issued under and are equally and
ratably secured and entitled to the security given by the Indenture. The
Indenture, among other things, assigns to the Trustee for the benefit of the
Bondholders certain of the rights and remedies of the Issuer under a loan
agreement (the "Agreement"), dated as of November 1, 1989, between the Issuer
and the Company, including the right to collect and receive certain amounts
payable thereunder, as security for the payment of the principal of, and
premium, if any, and interest on the Series 1989 Bonds.
As long as the Agreement is in effect, and subject to the
terms and conditions contained in the Indenture and the Agreement, one or more
series of additional bonds may be issued under the Indenture pursuant to a
supplemental indenture or indentures on a parity with, and secured and payable
equally and ratably under the Indenture with, the Series 1989 Bonds for the
purposes provided in the Agreement. The date or dates of such additional bonds,
the rate or rates of interest on such additional bonds, the time or times of
payment of the interest thereon and the principal thereof, and (except as
otherwise provided in the Indenture) the redemption provisions, if any, with
respect thereto all shall be provided in the supplemental indenture authorizing
such additional bonds, rather than as provided in the Indenture, and may differ
from the provisions with respect to the Series 1989 Bonds. Said additional bonds
and the Series 1989 Bonds are collectively referred to herein as the "Bonds."
Reference is hereby made to the Agreement and the Indenture
and to all amendments and supplements thereto (a copy of each of which is and
will be on file at the principal corporate trust office of the Trustee) for the
provisions, among others, with respect to the nature and extent of the security
for the Bonds, the rights, duties and obligations of the Issuer, the Company,
the Trustee and the Owners of the Bonds and the terms upon which the Bonds are
issued and secured. Capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Indenture.
The Bonds are issuable as fully registered bonds without
coupons in the denominations of $5,000 or any integral multiple of $5,000 in
excess thereof.
This bond is fully negotiable and transferable, as provided in
the Indenture, only upon the books of the Issuer' kept by the Trustee, and,
subject to the limitations provided in the Indenture, may be negotiated and
transferred by the registered owner hereof in person or by his attorney duly
authorized in writing upon the surrender of this bond together with a written
instrument of transfer reasonably satisfactory to the Trustee. Thereupon, a new
bond or bonds, in registered form, in the same aggregate unpaid principal amount
and of the same maturity, interest rate and series as this bond shall be issued
to the transferee in exchange herefor as provided in the Indenture.
The Issuer, the Trustee and any paying agent may deem and
treat the person in whose name this bond is registered as the absolute owner
hereof, whether this bond shall be overdue or not, for the purpose of receiving
payment of the principal of, premium, if any, and (subject to the provisions of
the Indenture) interest on this bond and for all other purposes. All such
payments so made to the registered owner hereof shall satisfy and discharge the
liability upon this bond to the extent of the sum or sums so paid, and the
Issuer, the Trustee and any paying agent shall not be affected by any notice to
the contrary.
The Bonds are subject to mandatory redemption prior to their
maturity upon a "Determination of Taxability" (as hereinafter defined) with
respect to any Bond. If so called for redemption, the Bonds shall be redeemed by
the Issuer in whole at any time within one hundred eighty (180) days after such
Determination of Taxability, at one hundred percent (100%) of the aggregate
principal amount of the Bonds then Outstanding, plus accrued interest to the
redemption date.
A "Determination of Taxability" shall be deemed to have been
made upon the first to occur of the following events:
(i) the date on, which the Company notifies the
Trustee that an "Event of Taxability" (as hereinafter defined)
has occurred, which notice is supported by one or more tax
schedules, returns or documents that evidence the occurrence
of such Event of Taxability;
(ii) the date on which the Company or the Trustee is
advised by private ruling, technical advice or any other
written communication from any authorized official of the
Internal Revenue Service that, based upon any filings of the
Company or any other person or entity, or upon any review or
audit of the Company or any other person or entity, or upon
any other grounds whatsoever, an Event of Taxability has
occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an
order, declaration, ruling or judgment to the effect that an
Event of Taxability has occurred; or
(iv) the date the Trustee shall have received written
notice from any owner of any Bond that it has received a
written assertion or claim by any
2
authorized official of the Internal Revenue Service that an
Event of Taxability has occurred;
provided, however, that no Determination of Taxability described in clause (i)
above shall be deemed to have occurred unless the Trustee shall have received a
written opinion of Bond Counsel satisfactory to the Trustee, in form and
substance satisfactory to the Trustee, to the effect that an Event of Taxability
has occurred.
"Event of Taxability," with respect to any Bond, means a
change of law or regulation, or the interpretation thereof, or the occurrence of
any other event or the existence of any other circumstance (including without
limitation the fact that any representation or warranty of the Company or the
Issuer made in connection with the issuance of the Bonds is or was untrue) that
has the effect of causing interest payable on any Bond to be includable in the
gross income of the owner thereof for Federal income tax purposes (other than by
reason that such interest (i) is includable in the gross income of an owner or
former owner of a Bond while such owner or former owner is or was a "substantial
user" of the Project or a "related person" to a "substantial user," as such
terms are used in Section 103(b)(13) of the Internal Revenue Code of 1954, as
amended, or (ii) is deemed an item of tax preference, including without
limitation an item subject to any alternative minimum tax).
The Bonds shall be redeemed prior to maturity by the Issuer in
whole at any time at 100% of the principal amount thereof, plus interest accrued
thereon to the date set for redemption, if the Company elects to terminate the
Agreement upon the occurrence of one of the following events:
(i) the Project shall have been damaged or destroyed
to such extent that (a) in the reasonable opinion of the
Company, the Project cannot be reasonably restored within a
period of 6 months from the date of such damage or
destruction, or (b) the Company is thereby prevented or, in
the reasonable opinion of the Company, is likely to be
prevented from carrying on its normal operation of the Project
for a period of 6 months from the date of such damage or
destruction; or
(ii) title to, or the temporary use of all or
substantially all, of the Project shall have been condemned by
a competent authority which condemnation results or, in the
reasonable opinion of the Company, is likely to result in the
Company being thereby prevented from carrying on its normal
operation of the Project for a period of 6 months; or
(iii) as a result of changes in the Constitution of
the United States of America or of the State of West Virginia
or of legislative or executive action of any political
subdivision thereof or of the United States of America or by
final decree or judgment of any court, after the contest
thereof by the Company, the Agreement becomes void or
unenforceable or, in the reasonable opinion of the Company,
the Agreement becomes impossible of performance in accordance
with the intent and purposes of the parties as expressed
therein or unreasonable
3
burdens or excessive liabilities are imposed upon the Company
by reason of the operation of the Project; or
(iv) a change shall have occurred in the economic
availability of raw materials, manufactured products, energy
sources, operating supplies or facilities necessary for the
operation of the Project for the purposes for which the
Project was originally constructed, or such technological or
other changes shall have occurred that, in the reasonable
opinion of the Company, the Project is rendered uneconomic,
impractical or unfeasible for the purposes for which it was
originally constructed.
The Series 1989 Bonds also shall be redeemed prior to maturity
by the Issuer, at the option of the Company, in whole at any time or in part
from time to time on any Interest Payment Date on and after November 1, 1999,
upon payment in each case of the applicable redemption price (expressed as a
percentage of the principal amount of such Series 1989 Bonds to be so redeemed),
as set forth in the schedule below, together with interest accrued thereon to
the date set for redemption:
Period During
Which Redeemed
(Both dates inclusive) Redemption Price
---------------------- ----------------
November 1, 1999 to October 31, 2000 102%
November 1, 2000 to October 31, 2001 101-1/2%
November 1, 2001 to October 31, 2002 101%
November 1, 2002 to October 31, 2003 100-1/2%
November 1, 2003 and thereafter 100%
In the event of redemption of less than all the Bonds
Outstanding, the Trustee shall (i) select the Bonds to be redeemed by lot and
(ii) for such purposes, treat each Bond .in a denomination greater than $5,000
as if it were that number of separate Bonds derived by dividing its denomination
by $5,000.
Whenever Bonds are to be redeemed as aforesaid, the Trustee
shall give notice of the redemption of the Bonds in the name of the Issuer
stating: (i) the Bonds or portions thereof to be redeemed; (ii) -the redemption
date; (iii) the redemption price; and (iv) that if moneys or Government
obligations sufficient for such redemption have been deposited with the Trustee,
from and after the redemption date, interest on any Bond so called for
redemption shall cease to accrue.
Notice required as aforesaid shall be given by the Trustee by
first-class mail, postage prepaid, not less than thirty (30) days nor more than
forty-five (45) days prior to the redemption date, to the registered owners of
any Bonds to be redeemed in whole or in part at the addresses of such registered
owners appearing on the registration books. Any failure to give
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such notice or any defect therein shall not affect the proceedings for
redemption of any Bond as to which no such failure or defect has occurred.
On the redemption date, all Bonds or portions thereof so
called for redemption shall cease to bear interest and shall no longer be
secured by or entitled to the benefits of the Indenture, provided that moneys or
Government Obligations for their redemption are on deposit with the Trustee at
that time.
In the event the date fixed for payment of interest or
premium, if any, on or principal of this bond or the date fixed for redemption
of this bond shall not be a Business Day, then the payment of interest or
premium on or the principal or redemption price of this bond, as the case may
be, need not be made on such date but shall be made on the next succeeding
Business Day with the same force and effect as if made on such date fixed for
payment or such date fixed for redemption, as the case may be, and no interest
attributable to any such delay shall accrue. "Business Day" shall mean any day
of the week other than a Saturday, Sunday or legal holiday in The City of New
York, New York or the City of Pittsburgh, Pennsylvania, or a day on which
banking institutions in The City of New York, New York or the City of
Pittsburgh, Pennsylvania, are authorized by law to close.
In the event that there shall occur a Designated Event and a
Qualifying Downgrade, the Owner of this bond may tender to the Company and
require the Company to purchase all or any portion of this bond (but only in
denominations of $5,000 or any integral multiple thereof) on the Repurchase
Date, all as more fully described in the Indenture. The Company has agreed in
the Agreement to purchase each Series 1989 Bond so tendered at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest thereon to
the Repurchase Date.
Upon the occurrence of an Event of Default, the principal
hereof and interest hereon may be declared to be forthwith due and payable in
the manner, upon the conditions and with the effect provided in the Indenture.
The Owner of this bond shall have no right to enforce the
provisions of the Indenture, to institute any action to enforce the covenants
therein, to take any action with respect to any Event of Default thereunder or
to institute, appear in or defend any suit or other proceedings with respect
thereto, except as otherwise expressly provided in the Indenture. In addition,
the right of the Owner of this bond to institute or prosecute a suit for the
enforcement of payment hereof or to enter a judgment in any such suit is limited
to the extent that such action would result in the surrender, impairment, waiver
or loss of the Lien of the Indenture for the equal and ratable benefit of all
Bondholders.
Modifications or alterations of the Indenture or the Agreement
(or any supplements thereto) may be made only to the extent and under the
circumstances permitted by the Indenture.
-------------------------
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The following abbreviations, when used in the inscription on
the face of this bond, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _____________ Custodian _____________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _____________
(State)
Additional abbreviations may also be used though not in the above list.
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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PLEASE INSERT TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address of assignee)
the within bond and all rights and title thereunder, and hereby irrevocably
constitutes and appoints __________________________________ attorney to transfer
the within bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
----------------------------- -----------------------------------
-------------------------------
NOTICE: The signature above must correspond with the name as it appears upon the
face of the within bond in every particular, without enlargement or alteration,
and the Taxpayer Identification Number must be furnished.
Signature Guaranty:
----------------------------------------------------------
The signature must be guaranteed by a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or by a commercial bank
or trust company located in the United States of America.
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