Exhibit 4.17
CITY OF WEIRTON, WEST VIRGINIA
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
------------------------
FORM OF
INDENTURE OF TRUST
------------------------
Dated as of ____________ __, 2002
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................................................................. 17
Section 2.01 Authorized Amount of Bonds................................................................... 17
Section 2.02 Purposes for Which Bonds May Be Issued....................................................... 17
Section 2.03 Issuance and Form of Bonds; Legend........................................................... 17
Section 2.04 Execution; Limited Obligations............................................................... 18
Section 2.05 Authentication............................................................................... 19
Section 2.06 Securities Depository Provisions............................................................. 19
Section 2.07 Temporary Bonds.............................................................................. 20
Section 2.08 Delivery of the Bonds........................................................................ 20
Section 2.09 Mutilated, Lost, Stolen or Destroyed Bonds................................................... 22
Section 2.10 Interchangeability of Bonds; Negotiability................................................... 22
Section 2.11 Registration, Transfer and Exchange.......................................................... 23
Section 2.12 Wire Instructions............................................................................ 24
Section 2.13 Discontinuance of Book-Entry System.......................................................... 24
ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY; TENDER OPTION RIGHTS OF BONDHOLDERS; PURCHASE IN LIEU
OF REDEMPTION................................................................................................... 25
Section 3.01 Mandatory Redemption; Extraordinary Redemption; Optional Redemption.......................... 25
Section 3.02 Notice of Redemption or Purchase............................................................. 28
Section 3.03 Payment of Redeemed Bonds.................................................................... 28
Section 3.04 Tender Option Right of Holders............................................................... 29
Section 3.05 Purchase in Lieu of Redemption............................................................... 32
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ARTICLE IV BOND FUND, REBATE FUND, REVENUES AND APPLICATION THEREOF............................................ 33
Section 4.01 Establishment of Bond Fund................................................................... 33
Section 4.02 Moneys to be Held in Trust................................................................... 33
Section 4.03 Payments into the Bond Fund.................................................................. 33
Section 4.04 Use of Moneys in the Bond Fund............................................................... 33
Section 4.05 Investment of Moneys; Tax Covenants.......................................................... 34
Section 4.06 Nonpresentment of Bonds...................................................................... 34
Section 4.07 Establishment of Rebate Fund................................................................. 35
Section 4.08 Additional Funds............................................................................. 37
ARTICLE V GENERAL COVENANTS AND PROVISIONS..................................................................... 37
Section 5.01 Authority of Issuer; Validity of Indenture and Bonds......................................... 37
Section 5.02 Performance of Covenants..................................................................... 37
Section 5.03 Payment of Principal, Premium and Interest................................................... 37
Section 5.04 Revenues from Agreement...................................................................... 37
Section 5.05 Priority of Lien of Indenture................................................................ 38
Section 5.06 Enforcement of Duties and Obligations of the Company......................................... 38
Section 5.07 Recordation of Indenture and Agreement; Filing of Security Instruments....................... 38
Section 5.08 Rights Under Agreement, Deeds of Trust and the Security Agreement............................ 38
Section 5.09 List of Bondholders.......................................................................... 38
Section 5.10 Cancellation................................................................................. 39
Section 5.11 Payments Due on Saturdays, Sundays and Holidays.............................................. 39
Section 5.12 Instrument of Further Assurance.............................................................. 39
Section 5.13 Undertaking to Provide Ongoing Disclosure.................................................... 39
ARTICLE VI DISCHARGE OF INDENTURE.............................................................................. 40
Section 6.01 Discharge of Indenture....................................................................... 40
Section 6.02 Defeasance of Bonds.......................................................................... 40
ARTICLE VII DEFAULTS AND REMEDIES.............................................................................. 41
Section 7.01 Events of Default............................................................................ 41
Section 7.02 Acceleration................................................................................. 42
Section 7.03 Other Remedies; Rights of Owners of Bonds.................................................... 42
Section 7.04 Right of Owners of Bonds to Direct Proceedings............................................... 43
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Section 7.05 Appointment of Receivers..................................................................... 43
Section 7.06 Waiver....................................................................................... 43
Section 7.07 Application of Moneys........................................................................ 43
Section 7.08 Remedies Vested in Trustee................................................................... 45
Section 7.09 Rights and Remedies of Owners of Bonds....................................................... 45
Section 7.10 Termination of Proceedings................................................................... 45
Section 7.11 Waivers...................................................................................... 46
ARTICLE VIII THE TRUSTEE....................................................................................... 46
Section 8.01 Appointment of Trustee and Acceptance of Duties.............................................. 46
Section 8.02 Fees, Charges and Expenses of Trustee........................................................ 49
Section 8.03 Intervention by Trustee...................................................................... 49
Section 8.04 Notice to Owners of Bonds if Default Occurs.................................................. 49
Section 8.05 Merger or Consolidation of Trustee........................................................... 49
Section 8.06 Resignation by the Trustee................................................................... 50
Section 8.07 Removal of the Trustee....................................................................... 50
Section 8.08 Appointment of Successor Trustee by the Bondholders; Temporary Trustee....................... 50
Section 8.09 Concerning Successor Trustees................................................................ 51
Section 8.10 Successor Trustee as Custodian of Funds and Paying Agent..................................... 51
Section 8.11 Limitation on Trustee's Responsibilities Respecting Arbitrage................................ 52
ARTICLE IX SUPPLEMENTAL INDENTURES............................................................................. 52
Section 9.01 Supplemental Indentures Not Requiring Consent of Bondholders................................. 52
Section 9.02 Supplemental Indentures Requiring Consent of Bondholders..................................... 53
Section 9.03 Bond Counsel Opinion; Consent of Company to Supplemental Indentures.......................... 54
Section 9.04 Effect of Supplemental Indentures............................................................ 54
Section 9.05 Modifications by Unanimous Action............................................................ 54
ARTICLE X AMENDMENTS TO AGREEMENT.............................................................................. 55
Section 10.01 Amendments to Agreement Not Requiring Consent of Bondholders................................ 55
Section 10.02 Amendments to Agreement Requiring Consent of Bondholders.................................... 55
ARTICLE XI REMARKETING AGENT................................................................................... 56
Section 11.01 Qualifications of Remarketing Agent......................................................... 56
Section 11.02 Successor Remarketing Agent by Merger, Consolidation, Etc................................... 56
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Section 11.03 Resignation of Remarketing Agent............................................................ 56
Section 11.04 Removal of Remarketing Agent................................................................ 56
Section 11.05 Appointment of Successor Remarketing Agent.................................................. 56
ARTICLE XII MISCELLANEOUS...................................................................................... 57
Section 12.01. Consent of Bondholders..................................................................... 57
Section 12.02 Limitation of Rights........................................................................ 57
Section 12.03 Severability................................................................................ 58
Section 12.04 Notices..................................................................................... 58
Section 12.05 Counterparts................................................................................ 59
Section 12.06 Applicable Law.............................................................................. 59
Section 12.07 No Recourse................................................................................. 59
Section 12.08 Survival.................................................................................... 60
Section 12.10 Binding Effect.............................................................................. 60
Section 12.11 Intercreditor Agreement and Collateral Agency Agreement..................................... 60
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FORM OF INDENTURE OF TRUST
THIS INDENTURE OF TRUST (the "Indenture"), dated as of
____________ __, 2002, is between the CITY OF WEIRTON, WEST VIRGINIA, a public
corporation and an incorporated municipality duly organized and existing under
the constitution and laws of the State of West Virginia (the "Issuer"), and X.X.
XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a banking association organized and
existing under and by virtue of the laws of the United States of America, with a
corporate trust office located at Pittsburgh, Pennsylvania (the "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, of the West Virginia Code of 1931, 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 Refunding Bonds (Weirton Steel Corporation Project) Series 1989
(the "Series 1989 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, a
Delaware corporation (the "Company"); and
WHEREAS, the Issuer proposes to refund a portion of the Series
1989 Bonds in the aggregate principal amount of $____________ (the "Refunded
Series 1989 Bonds") by the issuance under this Indenture of its Secured
Pollution Control Revenue Refunding Bonds (Weirton Steel Corporation Project)
Series 2002 in the aggregate principal amount of $___________ (the "Bonds"); and
WHEREAS, the Issuer has undertaken to refund the Refunded
Series 1989 Bonds by exchanging the Bonds for the Refunded Series 1989 Bonds and
is authorized to enter into an Agreement (the "Agreement"), dated as of
____________ __, 2002, between the Issuer and the Company under which the Issuer
will make a loan, or will be deemed to have made a loan, to the Company in the
aggregate principal amount of $________________ (the "Bond Loan") and provide
for payments from the Company to the Issuer sufficient to pay when due the
principal of, premium, if any and Interest (as hereinafter defined) on the Bonds
as the same become due and related expenses; and
WHEREAS, all things necessary to make the 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 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 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 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 Bonds and any additional bonds issued in accordance with the provisions
of this Indenture 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 the 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 modifications, extensions and
renewals thereof, if any, together with all right, title and interest of the
Issuer in and to the Agreement (except under Sections 4.2(b), 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), 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), 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 do under the Agreement.
GRANTING CLAUSE SECOND
All right, title and interest of the Issuer in and to all
moneys and securities from time to time held by the Trustee under the terms of
this Indenture, except for moneys and securities deposited with or paid to the
Trustee for the redemption of particular Bonds, notice of the redemption of
which has been duly given, and except for moneys or securities held from time to
time in the Repurchase Moneys Account of the Bond Fund or in the Rebate Fund.
GRANTING CLAUSE THIRD
The Deeds of Trust and the Security Agreement, including all
modifications, extensions and renewals thereof, if any, together with all right,
title and interest of the Issuer in and to the Deeds of Trust and Security
Agreement including all payments, revenues and receipts payable or receivable
thereunder.
GRANTING CLAUSE FOURTH
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
Company or the Issuer or by anyone in its behalf or
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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;
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
except in the case of funds held hereunder for the benefit of particular Owners
of 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; except to the extent specifically provided in Article VI
hereof; 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 terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any Supplemental Indenture
hereto shall have the respective meanings specified in this Section. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the
singular.
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"Act" means The Industrial Development and Commercial
Development Bond Act, Chapter 13, Article 2C of the West Virginia Code of 1931,
as amended.
"Affiliate" means, when used with reference to a specified
Person, any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Person specified. For the purposes of
this definition, "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Agent Members" has the meaning set forth in Section 2.06
hereof.
"Agreement" means the Agreement, dated as of ____________ __,
2002, by and between the Issuer and the Company, as the same may be amended from
time to time.
"Assignment Agreement" means that certain Assignment and
Transfer of Deeds of Trust and Security Agreement, dated as of ___________,
2002, from the Issuer to the Trustee.
"Authorized Investments" means any one or more of the
following investments, if and to the extent the same are then legal investments
under the applicable laws of the State of West Virginia for moneys proposed to
be invested therein:
(a) Bonds or other obligations of the State of West Virginia
or bonds or other obligations the principal and interest of which are
guaranteed by the State of West Virginia.
(b) Government Obligations;
(c) Obligations of agencies of the United States government
issued by the Federal Land Bank, the Federal Home Loan Bank, the
Federal Intermediate Credit Bank, the Bank for Cooperatives, the
Federal Financing Bank, the Farm Credit System, the Federal Home Loan
Mortgage Corporation (including participation certificates), the Export
Bank of the United States, the Federal National Mortgage Association,
the Government National Mortgage Association, or any agency or
instrumentality of the government of the United States of America which
shall be established for the purpose of acquiring the obligations of
any of the foregoing;
(d) Bonds or other obligations issued by any public housing
agency or municipality in the United States, which bonds or obligations
are fully secured as to the payment of both principal and interest by a
pledge of annual contributions under an annual contributions contract
or contracts with the United States government, or project notes issued
by any public housing agency, urban renewal agency, or municipality in
the United States and fully secured as to payment of both principal and
interest by a requisition, loan, or payment agreement with the United
States government;
(e) Certificates of deposit of any banks having a combined
capital, surplus and undivided profits of $10,000,000, the deposits of
which are insured by the Federal Deposit Insurance Corporation or any
successor agency (the "FDIC"), including the certificates of deposit of
any bank, savings and loan association, or building and loan
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association acting as depository, custodian, or trustee for any such
bond proceeds; provided, however, that the portion of such certificates
of deposit in excess of the amount insured by the FDIC, if any such
excess exists, shall be secured by deposit with the Federal Reserve
Bank, or with any bank, of one or more of the following securities in
an aggregate principal amount equal at least to the amount of such
excess: (i) Direct and general obligations of the State of West
Virginia or of any county or municipality in the State of West
Virginia; (ii) Government Obligations; (iii) Obligations of agencies of
the United States government included in subparagraph (c) of this
definition; or (iv) Bonds, obligations, or project notes of public
housing agencies, urban renewal agencies, or municipalities included in
subparagraph (d) of this definition;
(f) A taxable or tax-exempt money market fund rated in one of
the three highest rating categories available from a nationally
recognized rating service, which may include any mutual fund for which
the Trustee or an Affiliate of the Trustee serves as investment
manager, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (i) the Trustee or an Affiliate
of the Trustee receives fees from such funds for services rendered,
(ii) the Trustee charges and collects fees for services rendered
pursuant to the Indenture, which fees are separate from the fees
received from such funds, and (iii) services performed for such funds
and pursuant to the Indenture may at times duplicate those provided to
such funds by the Trustee or its Affiliates;
(g) Interest-bearing time deposits, repurchase agreements,
reverse repurchase agreements, rate guarantee agreements, or other
similar banking arrangements with a bank or trust company having
capital and surplus aggregating at least $50,000,000 or with any
government bond dealer reporting to, trading with, and recognized as a
primary dealer by the Federal Reserve Bank of New York having capital
aggregating at least $50,000,000 or with any corporation which is
subject to registration with the Board of Governors of the Federal
Reserve System pursuant to the requirements of the Bank Holding Company
Act of 1956, provided that each such interest-bearing time deposit,
repurchase agreement, reverse repurchase agreement, rate guarantee
agreement, or other similar banking arrangement shall permit the moneys
so placed to be available for use at the time provided with respect to
the investment or reinvestment of such moneys;
(h) Government Obligations, the interest on which is exempt
from federal income taxation under Section 103 of the Code and which is
not an item of tax preference for purposes of federal alternative
minimum tax and which are rated in one of the three highest rating
categories available from a nationally recognized rating service;
(i) Any and all other obligations of investment grade quality
having a credit rating from a nationally recognized rating service of
at least one of the three highest rating categories available and
having a nationally recognized market, including, but not limited to,
collateralized mortgage obligations, owner trusts offering
collateralized mortgage obligations, guaranteed investment contracts
offered by any firm, agency, business, governmental unit, bank,
insurance company, corporation chartered by the United States Congress,
or other entity, real estate mortgage investment conduits, mortgage
obligations, mortgage pools, and pass-through securities; and
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(j) Any other investments which in the Opinion of Counsel are
authorized by the laws of the State of West Virginia.
Any investment listed above which represents investment of
amounts in any fund created hereunder, or in any account with any such fund
either shall not have a maturity in excess of 91 days or shall be subject to
tender at the option of the holder thereof to the issuer of any such investment
or its designated agent for redemption or purchase at not less than par value at
least as frequently as every seven days until maturity, earlier redemption or
purchase by such issuer or designated agent.
"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.
"Beneficial Owner" means, for any Bond which is held by a
nominee, the beneficial owner of such Bond.
"Board of Directors" mean the Board of Directors of the
Company or any authorized committee of the Board of Directors.
"Book Entry Bonds" means that part of the Bonds for which a
Securities Depository or its nominee is the Bondholder.
"Bond" or "Bonds" means the bonds authenticated and delivered
pursuant hereto.
"Bond Counsel" means the firm of Steptoe & Xxxxxxx, PLLC,
Charleston, West Virginia, or any other attorney or firm of attorneys designated
by the Company whose experience in matters relating to the issuance of
obligations by states and their political subdivisions is nationally recognized.
"Bond Debt" means, collectively, the Bond Loan and all other
obligations, liabilities and indebtedness owing by the Company to the Issuer,
the Trustee and/or the holders of the Bonds, including, without limitation,
principal and Interest (including, without limitation, any Interest accruing
after the commencement of insolvency proceedings with respect to the Company,
whether or not such Interest is allowed as a claim in such proceedings), fees
and premiums owing by the Company to the Issuer, the Trustee and/or the holders
of the Bonds (including, without limitation, reasonable attorneys' fees and
disbursements), and all other amounts owing under the Agreement, the Deeds of
Trust, the Security Agreement or any of the other Bond Documents.
"Bond Documents" means, collectively, the Bonds, this
Indenture, the Agreement, the Security Documents and all other documents,
instruments and agreements now or hereafter evidencing, governing, securing or
otherwise pertaining to the Bond Loan or the Bonds or otherwise executed and
delivered by or on behalf of the Company or any other party in
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connection with the Bond Loan or the Bonds or any of the foregoing documents,
together with all amendments, modifications, renewals, substitutions and
replacements of or to any of the foregoing.
"Bond Fund" means the fund so designated which is created by
Section 4.01 of this Indenture.
"Bondholder" or "Holder" or "Owner" or "registered owner"
means the registered holder of any Bond as its name appears in the registration
books of the Issuer maintained by the Trustee as Bond Registrar.
"Bond Loan" has the meaning set forth in the Recitals hereof.
"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 Register" has the meaning set forth in Section 2.11
hereof.
"Bond Registrar" has the meaning set forth in Section 2.11
hereof.
"Bond Resolution" means the resolution of the Issuer
authorizing the issuance, execution, exchange and delivery of the Bonds and the
execution and delivery of this Indenture, the Agreement, and the Assignment
Agreement, as such resolution may be amended or supplemented from time to time.
"Business Day" means a day other than a Saturday, a Sunday or
a legal holiday on which national banks located in the State of New York or the
State of West Virginia or any city where the Trustee maintains its place of
business for performance of its obligations hereunder are not open for general
banking business.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of interest in (however designated) equity of such Person,
whether now outstanding or issued after the date of issue of the Bonds,
including, without limitation, membership interests in limited liability
companies and any Preferred Stock.
"Code" shall mean, collectively, the Code of 1954 and the Code
of 1986.
"Code of 1954" shall mean the Internal Revenue Code of 1954,
as amended (but not including any amendments made by the Tax Reform Act of
1986), and the regulations, rulings and proclamations promulgated or proposed
thereunder.
"Code of 1986" means the Internal Revenue Code of 1986, as
amended, and the regulations, rulings and proclamations promulgated or proposed
thereunder.
"Collateral" means, collectively, (i) the Tandem Mill
Collateral, (ii) the Tin Mill Collateral, (iii) the Hot Mill Collateral, (iv)
all other real or personal property hereafter pledged
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to or mortgaged or conveyed by deed of trust, mortgage, deed to secure debt,
security agreement or otherwise to the Issuer and/or Trustee to secure all or
any portion of the Bond Debt, (v) all proceeds of any of the foregoing, and (vi)
all other assets of the Company or any Subsidiary or Affiliate thereof on which
the Issuer and/or Trustee are granted a Lien to secure all or any portion of the
Bond Debt or the payment of the principal of, premium, if any or Interest on the
Bonds. NOTWITHSTANDING THE FOREGOING, THE COLLATERAL SHALL NOT INCLUDE ANY
ASSETS OR PROPERTIES CONSISTING OF THE PROJECT.
"Collateral Agency Agreement" means the Collateral Agency and
Second Lien Intercreditor Agreement, dated ___________, 2002, by and among the
Collateral Agent, the Trustee and the Notes Trustee, as the same may be amended
from time to time.
"Collateral Agent" means the collateral agent as set forth in
the Collateral Agency Agreement, until a successor replaces it in accordance
with the applicable provisions of Collateral Agency Agreement, and thereafter
means the successor.
"Commodity Agreement" means any option or futures contract or
similar agreement or arrangement designed to protect the Company against
fluctuations in commodity prices.
"Company" means (i) Weirton Steel Corporation, a Delaware
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.
"Continuing Director" has the meaning set forth in Section
3.04 hereof.
"Continuing Disclosure Agreement" means the Continuing
Disclosure Agreement dated as of ____________, 2002 by and among the Issuer, the
Company and the Trustee relating to the Company's undertaking to provide certain
information to the Holders of Bonds in accordance with Section (b)(5)(i) of the
Securities and Exchange Commission Rule 15c2-12 under the Exchange Act.
"Credit Facility" means any senior credit facility to be
entered into by the Company and the lenders referred to therein, together with
the related documents thereto (including the notes thereunder, any guarantees
and security documents), as amended, extended, renewed, restated, supplemented
or otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants, and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Facility or a successor Credit
Facility, whether by the same or any other lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company against fluctuations in currency values.
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"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.
"Deeds of Trust" means, collectively, (i) the Hot Mill Deed of
Trust, (ii) the Tandem Mill Deed of Trust, (iii) the Tin Mill Deed of Trust, and
(iv) any other deed of trust, mortgage, deed to secure debt, or other instrument
encumbering any Collateral constituting real property which is given or made by
the Company or any Subsidiary thereof to or for the benefit of the Issuer or
Trustee to secure all or any portion of the Bond Debt or to secure all or any
portion of the payment of the principal of, premium, if any, or Interest or
purchase price of the Bonds.
"Default Rate" shall mean 9% per annum, with monthly
compounding (computed on the basis of a 360-day year for the actual number of
days elapsed).
"Designated Event" has the meaning set forth in Section 3.04
hereof.
"DTC" shall have the meaning given to such term in Section
2.06.
"Event of Default" or "Default" means any Event of Default
under this Indenture as specified in and determined by Section 7.01 hereof.
"Excess Cash Flow" means, as of each date such calculation
shall be made, the Consolidated EBITDA for the immediately preceding six month
period expiring on the last day of each December and June, respectively, prior
to such calculation date (such last day, the "Balance Sheet Date") plus (a)
decreases in working capital; minus the sum of (b) expenditures on capital
assets; (c) increases in working capital; and (d) interest and mandatory
principal payments on Indebtedness other than payments or pre-payments of
principal and fees or other amounts with respect to revolving credit
Indebtedness under the Credit Facility. The initial Balance Sheet Date shall be
designated as December 31, 2002.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended.
"Fixed Interest" means all Interest except any such Interest
that is determined by reference to the Company's Excess Cash Flow.
"Government Obligations" means noncallable, nonprepayable (a)
direct, general obligations of the United States of America, or (b) any
obligations unconditionally guaranteed as to the full and timely payment of all
amounts due thereunder by the full faith and credit of the United States of
America (including obligations held in book-entry form), but specifically
excluding any mutual funds or unit investment trusts invested in such
obligations.
"Hot Mill Collateral" means the real property constituting the
Company's Hot Strip Mill located at Company's Weirton, West Virginia
steel-making facility, which converts slabs into flat rolled coils, together
with all equipment and fixtures now or hereafter located thereon (whether or not
later moved), as described with particularity in the Hot Mill Deed of
9
Trust, together with all other property, real or personal, conveyed by or
pledged under or pursuant to the Hot Mill Deed of Trust and/or the Security
Agreement and otherwise described as "Property" or "Collateral", respectively
therein; provided, however, that only that portion of the "Collateral" described
in the Security Agreement which is located on, is used in connection with or is
proceeds of the Hot Strip Mill shall be included as part of the "Hot Mill
Collateral."
"Hot Mill Deed of Trust" means that certain Deed of Trust,
dated as of _____________, 2002 made by the Company in favor of Xxxxx Xxxx, as
trustee, for the benefit of the Issuer and the Notes Trustee, as beneficiaries,
and encumbering the Hot Mill Collateral which constitutes real property, as the
Issuer's rights thereunder have been assigned to the Trustee pursuant to this
Indenture and the Assignment Agreement, and as amended, supplemented, restated
or otherwise modified from time to time.
"Indebtedness" means, without duplication, (i) any liability
of any entity (A) for borrowed money, or under any reimbursement obligation
relating to a letter of credit, (B) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation) given in connection
with the acquisition of any businesses, properties or assets of any kind or with
services incurred in connection with capital expenditures, or (C) in respect of
capitalized lease obligations; (ii) any liability of others described in the
preceding clause (i) that the entity has guaranteed or that is otherwise its
legal liability; (iii) to the extent not otherwise included, obligations under
Currency Agreements, Commodity Agreements or Interest Protection Agreements; and
(iv) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i)-(iii) above,
provided that Indebtedness shall not include accounts payable (including,
without limitation, accounts payable to the Company by any of its Subsidiaries
or to any such Subsidiary by the Company or any other Subsidiary of the Company,
in each case, in accordance with customary industry practice) or liabilities to
trade creditors of any entity arising in the ordinary course of business.
"Indenture" means this Indenture of Trust, by and between the
Issuer and the Trustee, dated as of ____________ __, 2002, 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.
"Intercreditor Agreement" means the Intercreditor Agreement,
dated ___________, 2002, by and among the Trustee, the Notes Trustee, the
Collateral Agent and Fleet Capital Corporation, as agent to the lenders under
the Credit Facility, as the same may be amended from time to time.
"Interest" means any and all interest due and payable to the
Holders with respect to the Bonds under the terms of the Indenture.
"Interest Payment Date" means each date on which Interest
shall be payable on any of the Bonds in accordance with their terms.
10
"Interest Protection Agreement" of any Person means any
interest rate swap agreement, interest rate collar agreement, option or future
contract or other similar agreement or arrangement designed to protect such
Person or any of its Subsidiaries against fluctuations in interest rates.
"Issue Date" means ______________, 2002, the date on which the
Bonds are originally issued hereunder.
"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.
"Letter of Representations" means that certain Letter of
Representations, executed by the Issuer, the Company and the Trustee and
delivered to the Securities Depository and any amendments thereto or successor
agreements between the Issuer, the Company and the Trustee and any successor
Securities Depository, relating to a system of Book Entry Bonds to be maintained
by the Securities Depository with respect to the Bonds.
"Lien" means, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this definition, the Company shall be deemed to
own subject to a Lien any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Moody's" means Xxxxx'x 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.
"Notes Indenture" means the Indenture dated as of
________________, 2002, between the Company, as issuer, and X.X. Xxxxxx Trust
Company, National Association, as trustee, relating to the issuance by the
Company of Senior Secured Notes, as such indenture may be amended or
supplemented from time to time.
"Notes Trustee" means X.X. Xxxxxx Trust Company, National
Association and its successors as trustee under the Notes Indenture, together
with any banking institution resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any temporary or
successor trustee at the time serving as such thereunder.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors or the President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President") and by the Treasurer or the
Secretary or any Assistant Secretary of the Company and delivered to the
Trustee. Each such certificate shall comply with the Agreement.
11
"Original Issue Discount" means that portion of Fixed Interest
that is treated for federal income tax purposes as original issue discount
within the meaning of Code Section 1273(a).
"Opinion of Counsel" means an opinion from an attorney or firm
of attorneys, acceptable to the Company, Issuer and the Trustee, with experience
in the matters to be covered in the opinion.
"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 or delivered to the Trustee for cancellation; (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.
In determining whether the Holders of a requisite aggregate
principal amount of Outstanding Bonds have concurred in any request, demand,
authorization, direction, notice, consent or waiver under the provisions of any
Bond Document, Bonds which are owned by or held for the account of the Company,
the Issuer or any other obligor on the Bonds, or any Affiliate of any one of
said entities shall be disregarded and deemed not to be Outstanding hereunder
for the purpose of any such determination unless all Bonds are owned by or held
for the account of one or more such Persons; provided, however, that the Trustee
shall not be deemed to have knowledge that any Bond is owned by the Company, the
Issuer or any such obligor or Affiliate unless the Issuer or the Company is the
Holder or the Trustee has received written notice that any other Holder is such
an obligor or Affiliate. Notwithstanding the foregoing, Bonds so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Bonds and that the pledgee is not a Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Company, the Issuer or any other obligor on the Bonds. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
"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
12
respective successors and any other corporation which may at any time be
substituted in their respective places pursuant to this Indenture.
"Permitted Acquisition" means any one or more transactions or
series of transactions by the Company or any of its Subsidiaries after the Issue
Date, whether effected by merger, consolidation, purchase, lease or other
transfer of assets, Permitted Joint Venture or otherwise, to acquire the
properties and related business (whether through the direct purchase of assets
or of the Capital Stock of the Person owning such assets) of any other Person
(a) where the Person to be acquired has been engaged, or the assets involved
have been deployed, in the business of making, processing or distributing steel
products, including without limitation tin mill products or other coated steel
products and (b) the consummation of any such transaction would not otherwise
result in any "Event of Default" under and as such term is defined in the
Agreement immediately thereafter.
"Permitted Joint Venture" means the interest of the Company in
any corporation, association or other business entity of which 50% or less, but
not less than 10%, of the total Voting Stock or other interest is at the time
owned or controlled, directly or indirectly, by the Company or one or more of
its Subsidiaries or a combination thereof, provided that (a) such corporation,
association or entity is engaged in the business or businesses of the Company or
any related business and (b) that any interest paid by Company or any Subsidiary
of Company on any Indebtedness incurred by the Company or any Subsidiary of the
Company in connection with such ownership interest shall not exceed the sum of
(x) any dividends, other distributions of earnings and returns of capital
received by the Company and any of its Subsidiaries on account of such ownership
interest and (y) demonstrable operating benefits derived by the Company and any
of its Subsidiaries, including cost savings and margin improvements, calculated
on a pro forma basis as determined in good faith by management of the Company
and adopted by resolution of the majority of the independent members of the
Company's Board of Directors and delivered to the Trustee in an Officers'
Certificate.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment trust,
government or any agency or political subdivision thereof, or any other form of
entity.
"Preferred Stock" of any Person means all Capital Stock of
such Person which has a preference in liquidation or a preference with respect
to the payment of dividends.
"Principal Corporate Trust Office" means the corporate trust
office of the Trustee located at Dallas, Texas, or such other office as the
Trustee may designate from time to time by written notice to the Issuer and the
Company.
"Project" means the pollution control equipment heretofore
installed in the Company's steel manufacturing plant, located in the City of
Weirton, West Virginia, financed (or refinanced) with the proceeds of the Series
1989 Bonds, and presently owned by, or leased to, the Company.
13
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under generally accepted accounting principles.
"Purchase in Lieu of Redemption Date" has the meaning set
forth in Section 3.05 hereof.
"Qualified Stated Interest" means that portion of Fixed
Interest that is treated for federal income tax purpose as qualified stated
interest within the meaning of Treasury Regulation Section 1.1273-1(c).
"Rebate Fund" means the fund so designated which is created by
Section 4.07 of this Indenture.
"Record Date" means the fifteenth day of the month next
preceding any Bond Payment Date.
"Refunded Series 1989 Bonds" has the meaning set forth in the
recitals to this Indenture.
"Remarketing Agent" has the meaning set forth in Section 3.04
hereof.
"Remarketing Conditions" has the meaning set forth in Section
3.04 hereof.
"Remarketing Price" has the meaning set forth in Section 3.04
hereof.
"Repurchase Date" has the meaning set forth in Section 3.04
hereof.
"Repurchase Exercise Date" has the meaning set forth in
Section 3.04 hereof.
"Repurchase Price" has the meaning set forth in Section 3.04
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means collectively, (a) the Security
Agreement dated _________, 2002 made by the Company for the benefit of the
Issuer and the Notes Trustee encumbering a portion of the Hot Mill Collateral,
Tandem Mill Collateral and Tin Mill Collateral, which constitutes personal
property, as the Issuer's rights thereunder have been assigned to the Trustee
pursuant to this Indenture and Assignment Agreement, and as amended or
supplemented from time to time and (b) any other security agreement or other
instrument encumbering any Collateral constituting personal property which is
given or made by the Company or any Subsidiary thereof to the Trustee to secure
all or any portion of the Bond Debt or to secure all or any portion of the
payment of the principal of, premium, if any, or Interest or purchase price of
the Bonds.
"Security Documents" means the Deeds of Trust, the Assignment
Agreement, the Security Agreement, any Uniform Commercial Code financing
statements filed in connection with the Bond Loan, and all other documents,
instruments and agreements now or hereafter
14
evidencing, governing, securing or otherwise pertaining to the Bond Loan, the
Bonds or otherwise executed and delivered by or on behalf of the Company or any
other party in connection with the Bond Loan, the Bonds or any of the foregoing
documents, together with all amendments, modifications, renewals, substitutions
and replacements of or to any of the foregoing.
"Securities Depository" means a person that is registered as a
clearing agency under Section 17A of the Securities Exchange Act of 1934 or
whose business is confined to the performance of the functions of a clearing
agency with respect to exempted securities, as defined in Section 3(a)(12) of
such Act for the purposes of Section 17A thereof.
"Senior Secured Notes" means the 10% Senior Secured Notes due
2008 originally issued by the Company in the aggregate principal amount of
$134,200,000 pursuant to the Notes Indenture.
"Series 1989 Bonds" means the Issuer's Pollution Control
Revenue Refunding Bonds (Weirton Steel Corporation Project) Series 1989, issued
in the original aggregate principal amount of $56,300,000.
"S&P" means Standard & Poor's, a division of the XxXxxx-Xxxx
Companies, Inc., 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.
"Subsidiary" means, with respect of any Person, any
corporation or other entity of which a majority of the Capital Stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
"Supplemental Indenture" means any indenture supplemental to
or amendatory of this Indenture adopted by the Issuer in accordance with Article
IX hereof.
"Tandem Mill Collateral" means the real property constituting
the Company's No. 9 tin tandem mill located at Company's Weirton, West Virginia
steel-making facility, together with all equipment and fixtures now or hereafter
located thereon (whether or not later moved), as described with particularity in
the Tandem Mill Deed of Trust, together with all other property, real or
personal, conveyed by or pledged under or pursuant to the Tandem Mill Deed of
Trust and/or the Security Agreement and otherwise described as "Property" or
"Collateral", respectively therein; provided, however, that only that portion of
the "Collateral" described in the Security Agreement which is located on, is
used in connection with or is proceeds of the Tandem Mill shall be included as
part of the "Tandem Mill Collateral."
"Tandem Mill Deed of Trust" means that certain Deed of Trust,
dated as of _____________, 2002 made by the Company in favor of Xxxxx Xxxx, as
trustee, for the benefit of the Issuer and the Notes Trustee, as beneficiaries,
and encumbering the Tandem Mill Collateral
15
which constitutes real property, as the Issuer's rights thereunder have been
assigned to the Trustee pursuant to this Indenture and the Assignment Agreement,
and as amended, supplemented, restated or otherwise modified from time to time.
"Tender Option Right" has the meaning set forth in Section
3.04 hereof.
"Tin Mill Collateral" means the real property constituting the
Company's tin mill located at the Company's Weirton, West Virginia steel-making
facility, together with all equipment and fixtures now or hereafter located
thereon (whether or not later moved), as described with particularity in the Tin
Mill Deed of Trust (excluding assets set forth in Exhibit B to the Tin Mill Deed
of Trust), together with all other property, real or personal, conveyed by or
pledged under or pursuant to the Tin Mill Deed of Trust and/or the Security
Agreement and otherwise described as "Property" or "Collateral", respectively
therein; provided, however, that only that portion of the "Collateral" described
in the Security Agreement which is located on, is used in connection with or is
proceeds of the Tin Mill shall be included as part of the "Tin Mill
Collateral.".
"Tin Mill Deed of Trust" means that certain Deed of Trust,
dated as of _____________, 2002 made by the Company in favor of Xxxxx Xxxx, as
trustee, for the benefit of the Issuer and the Notes Trustee, as beneficiaries,
and encumbering the Tin Mill Collateral which constitutes real property, as the
Issuer's rights thereunder have been assigned to the Trustee pursuant to this
Indenture and the Assignment Agreement and as amended, supplemented, restated or
otherwise modified from time to time.
"Treasury Regulations" means those treasury regulations
promulgated under the Code.
"Trust Estate" means all Property which may from time to time
be subject to the Lien of this Indenture.
"Trustee" means X.X. Xxxxxx Trust Company, National
Association 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.
"Voting Stock" means Capital Stock which ordinarily has voting
power for the election of directors (or persons performing similar functions),
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Wholly Owned Subsidiary" means, at any time, a Subsidiary all
of the Capital Stock of which (except directors' qualifying shares) are at the
time owned directly or indirectly by the Company.
16
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
THIRTY-THREE MILLION EIGHT HUNDRED THOUSAND Dollars ($33,800,000), except as
provided in Section 2.09 hereof.
Section 2.02 Purposes for Which Bonds May Be Issued. Bonds may
be issued only for the purposes of refunding the Refunded Series 1989 Bonds.
Section 2.03 Issuance and Form of Bonds; Legend. The Bonds
shall be designated "Secured Pollution Control Revenue Refunding Bonds (Weirton
Steel Corporation Project) Series 2002." The Bonds shall be issuable as fully
registered Bonds without coupons in the denomination of $1,000 or any integral
multiple of $1,000 in excess thereof. All Bonds issued under this Indenture
shall be in registered form in substantially the form set forth in Exhibit A
attached hereto, with appropriate variations, omissions and insertions as
permitted or required by this Indenture. The Bonds shall be numbered, lettered,
or otherwise distinguished in such manner or in accordance with such plans as
the officers of the Issuer executing the same may determine with the approval of
the Trustee. Bonds may be issued, if agreed by the Issuer and the Holder, in the
form of definitive Bonds in physical form. Any of the Bonds may have imprinted
or otherwise reproduced thereon such legend or legends, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Bonds are admitted to trading, or to conform to
general usage. The Issuer shall furnish any such legends or endorsements to the
Trustee in writing. The Issuer shall approve the form of the Bonds and any
notation, legend or endorsement on them.
(a) Each Bond shall bear Interest from the Issue Date and
shall be payable in the amount and on the dates as specified on the
form of Bond.
Except as otherwise provided herein, all Bonds shall
be subject to redemption or purchase 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.
(b) Each Bond shall bear the following original issue discount
legend:
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS BOND HAS ORIGINAL ISSUE
DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE
PRICE IS $ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
$ , IN EACH CASE PER $1,000 PRINCIPAL AMOUNT OF THIS BOND
FOR PURPOSES OF SECTION 1273 OF THE CODE, THE YIELD TO
MATURITY COMPOUNDED SEMIANNUALLY IS %.
(c) The Bonds shall be dated as of the Issue Date.
17
(d) Subject to the provisions of Section 2.06 hereof relating
to Book Entry Bonds, 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 Bonds, at the
Principal Corporate Trust Office of the Trustee. The purchase price of
any Bonds tendered for purchase hereunder shall be payable by the
Trustee to the Owner of Bonds entitled to receive such purchase price
at its address shown on the registration books of the Issuer maintained
by the Trustee. Payment of Interest on Bonds shall be made on each
Interest Payment Date to the Owner thereof on the Record Date and shall
be paid by check mailed or wire transfer 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. Payment of principal of, premium, if any, and
Interest on and purchase price upon tender of 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.
(e) 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
18
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 other amounts specifically pledged therefor
under this Indenture 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 the Security
Agreement and the Deeds of Trust or otherwise pledged therefor. Neither
the Issuer, the State nor any other political subdivision of the State
shall be obligated to pay the principal of the Bonds, premium, if any,
or 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 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.
(a) 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 Exhibits A or B 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.
(b) In the event any Bond is deemed tendered to the Trustee as
provided hereunder but is not physically so tendered, the Issuer shall
execute and the Trustee shall authenticate a new Bond of like
denomination as that deemed tendered.
Section 2.06 Securities Depository Provisions. All Book Entry
Bonds shall be registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"). The Issuer and the Trustee acknowledge that
they have executed and delivered a Letter of Representations with the Company
and DTC. All payments of principal of, premium, if any, and interest on the Book
Entry Bonds and all notices with respect thereto, including notices of full or
partial redemption or purchases in lieu of redemption, shall be made and given
at the times and in the manner set out in the Letter of Representations. The
terms and provisions of the Letter of Representations shall govern in the event
of any inconsistency between the provisions of this Indenture and the Letter of
Representations. The Letter of Representations may be amended without Bondholder
consent.
The Beneficial Owners of Book Entry Bonds will not receive
physical delivery of certificates except as provided herein. For so long as
there is a Securities Depository for Book Entry Bonds, all of such Bonds shall
be registered in the name of the nominee of the Securities Depository, all
transfers of beneficial ownership interests in such Bonds will be made in
accordance with the rules of the Securities Depository, and no investor or other
party purchasing,
19
selling or otherwise transferring beneficial ownership of such Bonds is to
receive, hold or deliver any certificate. The Issuer, the Trustee and the
Company shall have no responsibility or liability for transfers of beneficial
ownership interests in such Bonds.
The Issuer, the Company and the Trustee will recognize the
Securities Depository or its nominee as the Bondholder of Book Entry Bonds for
all purposes, including receipt of payments, notices and voting; provided the
Trustee may recognize votes by or on behalf of Beneficial Owners as if such
votes were made by Bondholders of a related portion of the Book Entry Bonds when
such votes are received in compliance with an omnibus proxy of the Securities
Depository or otherwise pursuant to the rules of the Securities Depository or
the provisions of the Letter of Representations or other comparable evidence
delivered to the Trustee by the Bondholders or as provided in Sections 7.11,
8.04 and 12.01 of this Indenture.
With respect to Book Entry Bonds, the Issuer, the Company and
the Trustee shall be entitled to treat the Person in whose name such Bond is
registered as the absolute owner of such Bond for all purposes of this
Indenture, and neither the Issuer, the Company nor the Trustee shall have any
responsibility or obligation to any Beneficial Owner of such Book Entry Bond.
Without limiting the immediately preceding sentence, neither the Issuer, the
Company nor the Trustee shall have any responsibility or obligation with respect
to (a) the accuracy of the records of any Securities Depository or any other
Person with respect to any ownership interest in Book Entry Bonds, (b) the
delivery to any Person, other than a Bondholder, of any notice with respect to
Book Entry Bonds, including any notice of redemption or refunding, (c) the
selection of the particular Book Entry Bonds or portions thereof to be redeemed
or refunded in the event of a partial redemption or refunding of part of the
Bonds Outstanding or (d) the payment to any Person, other than a Bondholder, of
any amount with respect to the principal of, redemption premium, if any, or
interest on Book Entry Bonds.
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 Bonds.
(a) Upon the execution and delivery of this Indenture, the
Issuer shall execute and deliver the Bonds to the Trustee and the
Trustee shall authenticate the Bonds and deliver them in accordance
with the directions of the Issuer and the provisions of this Section
2.08.
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(b) Prior to or simultaneously with the delivery by the
Trustee of any of the Bonds, there shall be filed with the Trustee at
least:
1. Original, executed counterparts of the
Agreement, this Indenture, the Security
Documents, the Collateral Agency Agreement
and the Intercreditor Agreement.
2. A certificate executed by an Authorized
Representative of the Company with respect
to the due authorization, execution and
delivery of the Agreement.
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
authorized, executed and delivered by 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 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 Bonds under the Bond
Resolution and the Act; the exemption from
registration of the Bonds under the
Securities Act; the exemption from
qualification of the Indenture under the
Trust Indenture Act of 1939, as amended; and
the tax-exempt status of the Qualified
Stated Interest or Original Issue Discount
on the 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 Bonds in
accordance with such authorization.
8. Assignment Agreement, in form and substance
reasonably satisfactory to the Trustee,
assigning the Issuer's rights under the
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Agreement, the Deeds of Trust and the
Security Agreement, as and to the extent
contemplated to be included in the Trust
Estate.
9. 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 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; Negotiability.
(a) Subject to Section 2.13 hereof, 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.
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(b) 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.
Section 2.11 Registration, Transfer and Exchange.
(a) 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 ("Bond Register").
The Trustee is hereby appointed bond registrar ("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.
(b) The Bonds are issuable only in registered form. Subject to
the provisions of Section 2.06 hereof with respect to the transfer of
ownership of Book Entry Bonds, a Holder may transfer a Bond by written
application to the Bond Registrar stating the name of the proposed
transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and
registration of the transfer by the Bond Registrar in the Bond
Register. Prior to the registration of any transfer by a Holder as
provided herein, the Issuer, the Trustee, and any agent of the Issuer
shall treat the person in whose name the Bond is registered as the
owner thereof for all purposes whether or not the Bond shall be
overdue, and neither the Issuer, the Trustee, nor any such agent shall
be affected by notice to the contrary. When Bonds are presented to the
Bond Registrar with a request to register the transfer or to exchange
them for an equal principal amount of Bonds of other authorized
denominations, the Bond Registrar shall register the transfer or make
the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges in accordance
with the terms, conditions and restrictions hereof, the Issuer shall
execute and the Trustee shall authenticate Bonds at the Bond
Registrar's request.
(c) 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.
(d) 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
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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.
(e) 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.
(f) 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 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 2.12 Wire Instructions. Notwithstanding any provisions
of this Indenture and the Bonds to the contrary, if the Issuer and a Holder so
agree, payments of cash Interest on, and any portion of the principal of any
Bonds other than the final payment of principal on a Bond or payment of the
purchase price of any Bond upon tender thereof, may be made by the Paying Agent
upon receipt from the Issuer in immediately available funds, directly to the
Holder of such Bond (whether by Federal funds, wire transfer or otherwise) if
the Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and designating
the bank account to which such payment shall be so made and in the case of
payments of a portion of the principal of any Bonds other than the final payment
of principal on a Bond, the Holder of such Bond surrenders the same to the
Trustee in exchange for a Bond or Bonds aggregating the same principal amount as
the unredeemed principal amount of the Bonds surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the Holder pursuant to
this Section 2.12 unless a new instruction is delivered 15 days prior to a
payment date. The Issuer will indemnify and hold the Trustee harmless against
any loss, liability or expense (including attorneys' fees) resulting from any
act or omission to act on the part of the Issuer or any such Holder in
connection with any such agreement or which the Paying Agent may incur as a
result of making any payment in accordance with any such agreement.
Section 2.13 Discontinuance of Book-Entry System. The
book-entry registration system for all of the Book Entry Bonds may be terminated
and certificates delivered to and registered in the name of the Beneficial
Owners, under either of the following circumstances:
(a) DTC notifies the Issuer, the Company and the Trustee that
it is no longer willing or able to act as Securities Depository for
the Book Entry Bonds and a successor Securities Depository for the
Book Entry Bonds is not appointed by the Issuer at the direction of
the Company prior to the effective date of such discontinuation; or
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(b) The Company determines that continuation of the
book-entry system through DTC (or a successor Securities Depository)
is not in the best interest of the Company.
In the event a successor Securities Depository is appointed by the
Issuer at the direction of the Company, the Book Entry Bonds will be registered
in the name of such successor Securities Depository or its nominee. In the event
certificates are required to be issued to Beneficial Owners, the Trustee, the
Company and the Issuer shall be fully protected in relying upon a certificate of
DTC or any DTC participant as to the identity of and the principal amount of
Book Entry Bonds held by such Beneficial Owners.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY;
TENDER OPTION RIGHTS OF BONDHOLDERS;
PURCHASE IN LIEU OF REDEMPTION
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 two
hundred ten (210) 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; or
(ii) a final resolution that Qualified Stated
Interest or Original Issue Discount on any Bond is includable
in the gross income of the recipient thereof for Federal
income tax purposes (other than by reason of the recipient
being a "substantial user" of the Project or a "related
person" to a "substantial user," as such terms are defined in
Section 103(b)(13) of the Code of 1954), that, under
applicable law, is not subject to further appeal, review or
modification through proceedings or otherwise, including (1)
by the expiration of a statute of limitations or a period for
the filing of claims appealing from adverse determinations, or
recovering any refund (including by offset), (2) by a
decision, judgment, decree, or other order by a court of
competent jurisdiction, which has become final and
unappealable, or (3) by closing agreement, an accepted offer
in
25
compromise under the Code, or comparable agreements under United States
federal income tax law or the laws of other jurisdictions;
provided, however, that no Determination of Taxability described in
clause (i) above shall be deemed to have occurred if the Trustee shall
have received an unqualified written opinion of Bond Counsel
satisfactory to the Trustee, in form and substance satisfactory to the
Trustee, to the effect that no 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 Qualified Stated Interest or Original Issue
Discount on any Bond to be includable in the gross income of the
recipient thereof for Federal income tax purposes (other than by reason
that such Qualified Stated Interest or Original Issue Discount (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 defined in Section 103(b)(13) of the Code of 1954, or (ii) is
deemed an item of tax preference, including without limitation an item
subject to any alternative minimum tax). The Company shall promptly
give written notice to the Issuer and the Trustee within thirty (30)
days after becoming aware that an Event of Taxability has occurred.
If the Issuer or the Trustee receives written notice
from any Owner of Bonds or taxing authority stating that a taxing
authority proposes to include Qualified Stated Interest or Original
Issue Discount on any Bond in the gross income of a Holder or Holders
of Bonds for the reasons described herein or any other proceeding has
been instituted which may lead to a final resolution as described in
clause (ii) of the definition of "Determination of Taxability" or to an
Event of Taxability (a "Tax Proceeding"), then the Trustee and/or the
Issuer shall promptly give written notice to the Company of such Tax
Proceeding and the Company shall have the right, at its own expense, to
participate in and control the Tax Proceeding to the same extent that
the Issuer would otherwise have the right to participate in and control
the Tax Proceeding. The Issuer hereby agrees to execute all documents
reasonably necessary to permit the Company to participate in and
control any such Tax Proceeding and neither the Trustee nor the Issuer
shall, without the prior written consent of the Company (which consent
shall not be unreasonably withheld) agree to the entry of any judgment
or enter into any settlement with respect to the Tax Proceeding.
(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 or any substantial portion of the Hot
Mill Collateral, Tandem Mill Collateral or the Tin Mill
Collateral, to the extent owned and operated by the Company
(each, a "Facility"), shall have been damaged or
26
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 or such
substantial portion of a Facility 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 or such substantial portion of a
Facility 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 or any substantial portion of
a Facility 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 or such substantial portion of a
Facility 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
any substantial portion of a Facility; 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 or any substantial portion of a
Facility for the purposes for which the Project or such
substantial portion of a Facility was originally constructed,
or such technological or other changes shall have occurred
that, in the reasonable opinion of the Company expressed in a
certificate signed by an Authorized Representative of the
Company, the Project or such substantial portion of a Facility
is rendered uneconomic, impractical or unfeasible for the
purposes for which it was originally constructed.
(c) The 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
on any Interest Payment Date; on or after April 1, 2004, 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, if any, to the date set for redemption, if redeemed during the
12-month period beginning April 1 of the years indicated below:
27
Year Redemption Price
---- ----------------
2004 102%
2005 101%
2006 and thereafter 100%
(d) The Bonds shall also be redeemed prior to maturity by the
Issuer in whole or in part on the first Interest Payment Date for which
adequate notice of redemption can be given hereunder, in the amount of
any prepayment of the Bond Loan required under Section 8.4 of the
Agreement at a redemption price equal to 100% of the principal amount
redeemed plus accrued Interest thereon to the redemption date.
(e) In the event that less than all of the Bonds are to be
redeemed at any time, selection of the Bonds for redemption will be
made by the Trustee by lot and, for such purposes, the Trustee shall
treat such Bonds in a denomination greater than $1,000 in principal
amount as if it were that number of separate Bonds derived by dividing
its denomination by $1,000.
Section 3.02 Notice of Redemption or Purchase.
(a) Whenever Bonds are to be redeemed pursuant to Section 3.01
hereof or purchased pursuant to Section 3.05 hereof, the Trustee shall
give written notice of the redemption or purchase of the Bonds in the
name of the Issuer stating: (i) the Bonds or portions thereof to be
redeemed or purchased; (ii) the redemption or purchase date; (iii) the
redemption or purchase 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, at least thirty (30) days
and not more than forty-five (45) days prior to the redemption or
purchase date, to the registered owners of any Bonds to be redeemed or
purchased 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 or purchase 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 $1,000 unit or units of principal amount called for
redemption and (ii) execute and cause the Trustee to 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.
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(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 a Designated Event (as
defined below) each Holder of Bonds shall have the right (the "Tender
Option Right"), at such Holder's option, to tender all or any part of
the Bonds owned by it (but only in denominations of $1,000 or any
integral multiple thereof) for purchase on the date (the "Repurchase
Date") that is 90 days after notice of such Designated Event, at a
purchase price equal to 101% of the principal amount thereof, plus any
accrued Interest, if any, thereon to the Repurchase Date (the
"Repurchase Price").
(b) On or before the thirtieth (30th) day following the
Designated Event, at the request of the Company (which request the
Company has agreed to make in Section 4.2(e) of the Agreement not more
than 21 days after the Designated Event), the Trustee shall promptly
give notice of a Designated Event and of the Tender Option Right
arising as a result thereof by registered or certified mail to each
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 The Wall Street Journal or another newspaper of general
circulation in the Borough of Manhattan, the City of New York. Each
such notice of a Tender Option Right shall state:
(i) the Repurchase Date;
(ii) the date by which the Tender Option Right must
be exercised which date shall not be earlier than forty-five
(45) days nor later than thirty (30) days prior to the
Repurchase Date (the "Repurchase Exercise Date");
(iii) the Repurchase Price, if the Tender Option
Right is exercised; and
(iv) a description of the procedure which a
Bondholder must follow to exercise the Tender Option 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
Bondholder's right to exercise a Tender Option Right.
(c) To exercise a Tender Option Right, a Holder of Bonds shall
deliver to the Trustee and the Company (or an agent designated by the
Company for such purpose in
29
the notice referred to in (b) above) on or prior to the Repurchase
Exercise Date (i) written notice of the Bondholder's exercise of the
Tender Option Right, which notice shall set forth the name of the
Holder, the principal amount of the Bonds (or portion thereof) being
tendered for purchase, and a statement that the Tender Option Right is
being exercised thereby and (ii) the Bonds with respect to which the
Tender Option Right is being exercised, duly endorsed for transfer.
Such written notice shall be irrevocable unless the rescission thereof
is duly approved by the Continuing Directors.
(d) In the event a Tender Option Right shall be exercised in
accordance with the terms hereof, the Company has agreed, in Section
4.2(e) of the Agreement, to pay or cause to be paid the Repurchase
Price for any Bond or Bonds tendered for purchase in cash to the Holder
of such Bond or Bonds on the Repurchase Date to the extent that
remarketing proceeds are not available or are insufficient to pay the
Repurchase Price thereof in full. In the event that a Tender Option
Right is exercised with respect to less than the entire principal
amount of a surrendered 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 Bond or Bonds in the aggregate principal amount of
that portion of such surrendered Bond or Bonds not tendered for
purchase.
(e) In the event that a Designated Event has occurred and
notice thereof has been given to Bondholders as provided in this
Section 3.04, the Company shall have the option to remarket all or any
Bonds tendered by a Bondholder pursuant to its Tender Option Right,
provided that the Remarketing Conditions have been satisfied and, in
connection therewith, shall have the right to appoint a remarketing
agent (the "Remarketing Agent") reasonably acceptable to the Issuer in
order to remarket such Bonds. The Company shall notify the Issuer and
Trustee of its election to remarket Bonds and of the appointment of a
Remarketing Agent in writing no less than fifteen (15) days prior to
the Repurchase Date. In connection with the appointment of any
Remarketing Agent, the Company shall promptly enter into a written
agreement with the Remarketing Agent in which, among other things, (i)
the Remarketing Agent shall designate its principal office to the
Company, the Issuer and the Trustee, (ii) the Remarketing Agent shall
agree to perform the duties and obligations imposed upon it hereunder,
(iii) the Remarketing Agent shall agree to hold all money delivered to
it hereunder in trust for the benefit of the Person which shall have so
delivered such money until the Bonds to be purchased with such money
shall have been delivered to or for the account of such Person, and
(iv) the Company and the Remarketing Agent shall agree upon the
compensation to be paid to the Remarketing Agent by the Company for
remarketing the Bonds.
(f) If a Remarketing Agent has been appointed to remarket
Bonds tendered for purchase pursuant to this Section 3.04, the
Remarketing Agent shall use its best efforts to remarket such Bonds at
the highest possible purchase price at which all Bonds to be tendered
for purchase pursuant to Section 3.04 hereof can be sold and, not less
than seven (7) days prior to the Repurchase Date, the Remarketing Agent
shall provide the Company with written notice of such purchase price
(the "Remarketing Price"). Upon receipt of such notice, the Company
shall have the option to either direct the Remarketing Agent to proceed
with the remarketing of such Bonds at the Remarketing Price or to
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direct that the Remarketing Agent reject the Remarketing Price and
cease all further efforts to remarket such Bonds. In any event, such
direction to the Remarketing Agent will be given by the Company to the
Remarketing Agent in writing and a copy of such notice will also be
delivered to the Trustee no later than five (5) days prior to the
Repurchase Date. If the Company has elected to proceed with the
remarketing of such Bonds, then no later than the Business Day prior to
the Repurchase Date, the Remarketing Agent shall provide the Trustee in
writing with the names, addresses, tax identification numbers and all
other information requested by the Trustee relating to the purchasers
of the Bonds which have been remarketed by the Remarketing Agent, and
shall further provide the Trustee and the Company with the amount of
the Remarketing Price to be paid by each of such purchasers. By no
later than 10:00 a.m., New York, New York time on the Repurchase Date,
the Remarketing Agent shall provide the Trustee and the Company with
written notice of the amount of proceeds being held by the Remarketing
Agent with respect to Bonds which have been remarketed and shall, no
later than 10:30 a.m., New York, New York time on the Repurchase Date,
deliver such proceeds to the Trustee. The Trustee shall prepare new
Bonds (with appropriate changes, deletions and insertions) for each
Bond purchased on the Repurchase Date, shall register such new Bonds in
the name of the Persons identified by the Remarketing Agent as the
purchasers thereof, or in the name of the Company if such Bonds have
not been remarketed but have been purchased by the Company pursuant to
the provisions hereof and of Section 4.2(e) of the Agreement, and shall
deliver such new Bonds to such purchasers or to the Company, as the
case may be, by 4:00 p.m., New York, New York time on the Repurchase
Date.
(g) To the extent that the remarketing proceeds from the
remarketing of Bonds pursuant to this Section 3.04 are unavailable
(either because no remarketing has occurred or because the Remarketing
Agent has failed to deposit any proceeds with respect to remarketed
Bonds with the Trustee by 10:30 a.m., New York, New York time on the
Repurchase Date) or are insufficient to pay the Repurchase Price in
full on the Repurchase Date, then, in accordance with Section 4.2(e) of
the Agreement, the Company shall be required to deposit with the
Trustee, no later than 11:00 a.m., New York, New York time on the
Repurchase Date, the amount of any such deficiency in order to effect
the purchase of all Bonds tendered for purchase on the Repurchase Date.
(h) Notwithstanding the foregoing or anything to the contrary
contained herein, no remarketing of any of the Bonds under this Section
3.04 shall occur unless each of the following conditions has been fully
satisfied (collectively, the "Remarketing Conditions"): (a) the Trustee
shall have received an opinion of Bond Counsel to the effect that the
remarketing of the Bonds will not adversely affect the exclusion from
gross income of the Qualified Stated Interest or Original Issue
Discount on the Bonds for Federal income tax purposes or the exemption
from taxation by the State (except inheritance, estate and transfer
taxes) of the Bonds and the income therefrom, and (b) the Trustee shall
have received an official statement or remarketing memorandum of the
Issuer with respect to the Bonds that are being remarketed.
(i) As used herein, a "Designated Event" means (A) any sale,
lease or other transfer (in one transaction or a series of
transactions) of more than 75% of
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the assets of the Company to any Person (other than a Wholly Owned
Subsidiary of the Company); (B) a "person" or "group" (within the
meanings of Sections 13(d) and 14(d)(2) of 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 fifty percent
(50%) of the voting power of such Capital Stock unless such acquisition
of beneficial ownership of shares of voting power of Capital Stock of
the Company occurs, directly or indirectly, in connection with the
financing of a Permitted Acquisition; (C) Continuing Directors cease to
constitute at least a majority of the Board of Directors of the
Company; or (D) the stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company.
(j) As used herein, 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 a majority
of the Continuing Directors then on the Board of Directors of the
Company.
Section 3.05 Purchase in Lieu of Redemption.
(a) Any Bonds called for redemption under this Indenture may
be purchased by the Company on the date upon which such Bonds were to
have been redeemed (the "Purchase in Lieu of Redemption Date") at a
purchase price equal to the redemption price thereof, plus accrued
Interest, if any, thereon to, but not including, the Purchase in Lieu
of Redemption Date. On or prior to the designated Purchase in Lieu of
Redemption Date, the Company shall give written notice to the Trustee
and the Paying Agent of the aggregate principal amount of Bonds for
which an election to purchase pursuant to this Section 3.05 is being
made. Bonds to be purchased by the Company which are not delivered to
the Trustee on the Purchase in Lieu of Redemption Date shall be deemed
to have been purchased by the Company and the Company shall be the
Owner of such Bonds for all purposes under this Indenture, and Interest
accruing on such Bonds on and after the Purchase In Lieu of Redemption
Date shall be payable solely to the Company. The Trustee shall
authenticate (and the Issuer shall execute, if necessary) and deliver
to the Company a new Bond as provided in Section 2.11 hereof.
(b) It is the intention of the parties hereto that the
purchase of the Bonds pursuant to this Section 3.05 shall not
constitute an optional prepayment of the Bond Loan or a merger or
extinguishment of the indebtedness of the Company represented by the
Agreement or the Bonds so purchased and that such Bonds shall for all
purposes be regarded as Outstanding hereunder except as otherwise
expressly provided herein. Upon the purchase of any Bond pursuant to
this Section 3.05, the notice of redemption thereof shall nunc pro tunc
be null, void and of no force and effect.
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ARTICLE IV
BOND FUND, REBATE FUND, REVENUES AND APPLICATION THEREOF
Section 4.01 Establishment of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be designated " Bond
Fund 2002 - Weirton Steel Corporation Project" (the "Bond Fund") which shall be
held, maintained and administered by the Trustee in accordance with this
Indenture.
Within the Bond Fund, there is hereby created and established
certain trust accounts to be designated "General Account" and the "Repurchase
Moneys Account."
Section 4.02 Moneys to be Held in Trust. All moneys deposited
with, paid to or received by the Trustee for the account of the Issuer pursuant
to this Indenture 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 or purchase in lieu
thereof 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 or purchase in lieu thereof; provided,
further, however, that moneys which have been deposited with, paid to or
received by the Trustee for the purchase of Bonds tendered for purchase pursuant
to Section 3.04 hereof, shall be held in trust for and subject to a Lien in
favor of only the Holders of Bonds so tendered for purchase.
Section 4.03 Payments into the Bond Fund. There shall be
deposited in the Bond Fund from time to time all payments specified in Sections
4.2(a), 4.2(d) and 4.2(e) 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. Any moneys deposited in the Bond
Fund pursuant to Sections 4.2(a) or 4.2(d) of the Agreement and any moneys paid
by the Company for the purchase of Bonds in lieu of redemption pursuant to
Section 3.05 hereof shall be placed in the General Account of the Bond Fund. Any
moneys paid by the Company under Section 4.2(e) of the Agreement and any
proceeds of a remarketing of the Bonds pursuant to Section 3.04 hereof shall be
deposited in the Repurchase Moneys Account of the Bond Fund.
Section 4.04 Use of Moneys in the Bond Fund. Except as
provided in Section 4.05 hereof, moneys in the Bond Fund (other than in the
Repurchase Moneys Account thereof) shall be used solely for the payment of the
principal of, premium, if any, and Interest on the Bonds as the same mature and
come due and for the redemption of the Bonds or the purchase in lieu thereof
prior to maturity. The Issuer hereby authorizes and directs the Trustee to
withdraw moneys from the Bond Fund (other than from the Repurchase Moneys
Account thereof) to pay the principal of, premium, if any, and Interest on the
Bonds as the same become due and payable and to make said funds so withdrawn
available to the Paying Agent for the purpose of paying such principal of,
premium, if any, and Interest. Moneys in the Repurchase Moneys Account shall be
used for the purchase of Bonds pursuant to Section 3.04 hereof and for no other
purpose. Moneys in the Repurchase Moneys Account shall not be subject to the
Lien of the Indenture or
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otherwise available for the payment of principal of, premium, if any, and
Interest on the Bonds except for the purchase of Bonds pursuant to Section 3.04
hereof.
Section 4.05 Investment of Moneys; Tax Covenants.
(a) Any moneys held as a part of the Bond Fund or any other
fund established pursuant to this Indenture 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 or the purchase price thereof when due.
(c) Any investment herein authorized is subject to the
condition that no use of the proceeds of the issuance of the Bonds 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 of 1986;
provided, however, that the Company shall be solely responsible for the
selection of any Authorized Investment under Section 4.05(a) hereof,
and the Trustee shall be entitled to rely on any investment direction
given to it by the Company pursuant to Section 4.05(a) above without
liability to the Company, the Issuer, any Bondholder or any other
Person 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 of 1986.
(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 Qualified Stated Interest or
Original Issue Discount on the Bonds not to be excludable from the
gross income of the recipients thereof for Federal income tax purposes.
Section 4.06 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
34
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. In the
absence of a written request from the Company to return unclaimed funds
to the Company, the Trustee shall from time to time deliver all
unclaimed funds to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with
the customary practices and procedures of the Trustee. Any unclaimed
funds held by the Trustee pursuant to this Section shall be held
uninvested and without any liability for interest.
Section 4.07 Establishment of Rebate Fund.
(a) There is hereby established a special trust fund which
shall be designated "Rebate Fund 2002 - Weirton Steel Corporation
Project" (the "Rebate Fund") which shall be held separate and apart
from all other funds established under this Indenture. The Trustee
shall be the depository, custodian and disbursing agent for the Rebate
Fund.
(b) To the extent there are excess amounts in the Bond Fund
and rebatable arbitrage becomes payable to the United States, the
Trustee shall transfer such excess amounts to the Rebate Fund. There
shall also be deposited in the Rebate Fund such amounts as are required
to be deposited therein as determined in accordance with Section 5.3(c)
of the Agreement and certified in writing by the Company to the
Trustee. Subject to the payment provisions provided in subsection (c)
below, all amounts on deposit at any time in the Rebate Fund shall be
held by the Trustee in trust, to the extent required to pay rebatable
arbitrage to the United States of America, and neither the Company, the
Issuer, nor the Bondholders shall have any rights in or claim to such
moneys. All amounts held in the Rebate Fund shall be governed by this
Section.
(c) The Trustee shall remit all rebate installments and a
final rebate payment to the United States in accordance with written
instructions received from the Company. The Trustee shall have no
obligation to pay any amounts required to be rebated pursuant to this
Section, other than from moneys held in the Rebate Fund or from other
moneys provided to it by the Company. Any moneys remaining in the
Rebate Fund after redemption or payment at maturity of all of the Bonds
and payment and satisfaction of any rebatable arbitrage, as certified
in writing by the Company to the Trustee, shall be withdrawn and paid
to the Company. Any excess amounts on deposit in the Rebate
35
Fund, as determined by the rebate analyst retained by the Company
shall, at the Company's option, be returned to the Company or retained
in the Rebate Fund as a credit against future deposits. The Trustee
will retain such records with respect to the Rebate Fund as described
in the arbitrage certificate executed in connection with the issuance
of the Bonds.
(d) Notwithstanding any other provision of this Indenture, the
obligation to pay rebatable arbitrage to the United States and to
comply with all other requirements of this Section shall survive the
defeasance or payment in full of the Bonds.
(e) Notwithstanding anything else contained in this Indenture
to the contrary, unless specifically agreed to in a separate written
agreement, neither the Trustee nor any Bondholder shall 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 of 1986 or any successor statute, or any regulation, ruling or
other judicial or administrative interpretation thereof, including,
without limitation, the calculation of amounts required to be paid to
the United States of America or the determination of the maximum amount
which may be invested in Nonpurpose Investments having a Yield higher
than the Yield on the Bonds, and neither the Trustee nor any Bondholder
shall be liable or responsible for monitoring compliance by the Company
or the Issuer with any of the requirements of Section 148 of the Code
of 1986, or any applicable regulation, ruling or other judicial or
administrative interpretation thereof, it being acknowledged and agreed
that the obligations of the Trustee in this regard shall be limited to
the receipt of funds for deposit in the Rebate Fund and the
disbursement thereof pursuant to written instructions of the Company or
the Issuer, as applicable, and the investment of moneys received by the
Trustee pursuant to the written instructions of the Company.
(f) The term "Nonpurpose Investments" shall mean any
investment property (as defined in Section 148(b) of the Code of 1986)
which is acquired with the Gross Proceeds of the Bonds and which is not
acquired to carry out the governmental purpose of the Bonds.
(g) The term "Gross Proceeds" shall mean the aggregate of:
(i) the net amount of Bond proceeds received by the
Issuer as a result of the sale of the Bonds;
(ii) all amounts received by the Issuer as a result
of the investment of the Bond proceeds;
(iii) any amounts held in any fund under this
Indenture to the extent that the Issuer reasonably expects to
use the amounts in such fund to pay principal of, premium, if
any, or Interest on the Bonds; and
(iv) any securities or obligations pledged by the
Issuer or by the Company as security for the payment of
principal of, premium, if any, or Interest on the Bonds.
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(h) The term "Yield" shall mean yield as defined in Section
148(h) of the Code of 1986 and any applicable Treasury Regulations
promulgated with respect thereto.
Section 4.08 Additional Funds. The Trustee is hereby
authorized to establish and create, from time to time, such other funds and
accounts as may be necessary for the deposit of moneys (including, without
limitation, insurance proceeds and/or Condemnation awards) received by the
Trustee pursuant to the terms hereof and of the Deeds of Trust, the Security
Agreement or any of the other Bond Documents.
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
Bonds authorized hereby and the execution and delivery of this Indenture has
been duly and effectively taken; and that the 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 Agreement, the Assignment Agreement, the Deeds of
Trust or in the Security 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 and purchase price of every Bond
issued under this Indenture at the place, on the dates and in the manner
provided herein and therein. All such principal, premium, Interest and purchase
price payments on the Bonds shall be payable solely from revenues and receipts
derived from the Agreement (except to the extent derived from income from the
investment thereof) and otherwise as provided herein and in the Agreement and
from the proceeds of any security therefor which amounts are hereby specifically
pledged to the payment thereof in the manner and to the extent herein specified.
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, Interest or purchase price 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
37
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 or the purchase price thereof as the same become due and payable.
Section 5.05 Priority of Lien of Indenture. The Issuer hereby
covenants that it has not created or permitted to be created any Lien upon the
Trust Estate, except for the security interest in the Trust Estate created by
this Indenture, and the Issuer covenants not to create or to permit to be
created any Lien upon the Trust Estate or any part thereof other than the Lien
of this Indenture.
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), the Deeds of Trust,
the Security Agreement 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 or otherwise required, will cause
the Company or the Trustee 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, Deeds of Trust and the
Security Agreement. The Agreement, the Deeds of Trust and the Security
Agreement, duly executed counterparts of which have been filed with the Trustee,
set 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, the Deeds of Trust and the Security 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
38
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 or purchase price of the Bonds or the date fixed for redemption or
purchase of any Bonds shall not be a Business Day, then payment of such
Interest, premium, principal or purchase price 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 or
purchase, as the case may be.
Section 5.12 Instrument of Further Assurance. The Issuer will
do, execute, acknowledge and deliver or cause to be done, executed, acknowledged
and delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the better
assuring, transferring, conveying, pledging, assigning and confirming unto the
Trustee all and singular the amounts pledged hereby to the payment of the
principal of, premium, if any, and Interest on the Bonds. The Issuer, except as
herein and in the Agreement provided, will not sell, convey, mortgage, encumber
or otherwise dispose of any part of the amounts, revenues and receipts payable
under the Agreement or its rights under the Agreement.
Section 5.13 Undertaking to Provide Ongoing Disclosure. The
Company has undertaken in the Continuing Disclosure Agreement to provide ongoing
disclosure for the benefit of the Bondholders pursuant to Section (b)(5)(i) of
the Securities and Exchange Commission Rule 15c2-12 under the Exchange Act. The
Continuing Disclosure Agreement is hereby assigned by the Issuer to the Trustee
for the benefit of the Bondholders. Such assignment is a present absolute
assignment and not the assignment of a security interest. The Company's
obligations under the Continuing Disclosure Agreement shall be enforceable by
any Bondholder and the Trustee.
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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 except (i) amounts in the Bond Fund required to be paid to the Company
under the terms of this Indenture, (ii) amounts held by the Trustee for the
payment of the principal or purchase price of, premium, if any, or Interest on
particular Bonds, and (iii) amounts held in the Rebate Fund required to be paid
to the United States.
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 and premium, if any, on 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,
including payments required to be made to the Rebate Fund, shall have been
paid or the payment thereof provided for to the satisfaction of the
Trustee, and (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 Qualified Stated Interest or Original Issue
Discount on the Bonds. 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
40
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 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 of 1986.
(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.
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 payment of all or any part of the principal of
or premium, if any, on any of the Bonds as and when the same shall become
due and payable either at maturity, by declaration or otherwise;
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(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 of the purchase price
of any Bond tendered by the Holder thereof pursuant to Section 3.04 or
Section 3.05 of this Indenture at the time required by Section 3.04 or
Section 3.05 hereof; or
(e) The occurrence and continuance of any other "Event of Default"
as defined in and under the Agreement.
Section 7.02 Acceleration. Upon the occurrence of any Event of
Default under Section 7.01 hereof, 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 Sections 4.2(a) and 4.5 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.
(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 8.03 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
42
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 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 (with interest on
overdue installments of such Interest, to the extent permitted by
law, at the Default Rate) and, if the amount available shall not
43
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) (with interest on overdue installments
of principal and premium, if any, to the extent permitted by law, at
the Default Rate) 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, with
interest on overdue installments of principal or Interest, to the extent
permitted by law, at the Default Rate.
(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, subject to the
provisions of Section 7.07(b) hereof, 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 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
44
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 or purchase price of,
premium, if any, and Interest on any Bond at and after the maturity thereof, or
the obligation of the Issuer to pay the principal of, premium, if any, 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.
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
45
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) not less than a majority in aggregate principal amount of all
Outstanding Bonds in respect of which default in the payment of principal,
premium or Interest exists or (ii) not less than a majority 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, premium, if any, 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
the 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.
ARTICLE VIII
THE TRUSTEE
Section 8.01 Appointment of Trustee and Acceptance of Duties.
(a) X.X. Xxxxxx Trust Company, National Association 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 and the Agreement. In
case an Event of Default has occurred and has not been cured or
waived, 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
46
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 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.
47
(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 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), (b) or (d) 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 at maturity 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 security for the Bonds and any
books, papers and records of the Issuer pertaining to the Project,
the Collateral 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 (other
than paying the principal or purchase price of, premium, if any, and
Interest on the Bonds as the same shall become due and payable), 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
48
may be adjudicated to have resulted from its own negligence or
willful misconduct 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.
(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,
including allocated costs and expenses of in-house counsel and legal staff,
reasonably made or incurred by the Trustee in connection with such services. The
Trustee also shall be entitled to indemnification by the Company as provided in
the Agreement. 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, premium, if any
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
49
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 or temporary Trustee has been appointed pursuant to Section 8.08 hereof.
The Trustee may petition a court to have a successor Trustee appointed
hereunder.
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. In addition, prior to the
occurrence of an Event of Default, or an event which, with the passage of time,
the giving of notice, or both, would constitute an Event of Default, the Trustee
may be removed at any time without cause by an instrument in writing delivered
to the Trustee and to the Issuer and signed by the Company. The removal of the
Trustee hereunder shall not take effect until a successor Trustee or temporary
Trustee has been appointed pursuant to Section 8.08 hereof.
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 (i) prior to the
occurrence of an Event of Default or an event which, with the passage of
time, the giving of notice, or both, would constitute an Event of Default,
the Company by an instrument signed by the Company and delivered to such
successor Trustee, the predecessor Trustee and the Issuer, and,
thereafter, (ii) 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.
50
(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 Company or the Bondholders, as
the case may be, 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 Company or the
Bondholders, as the case may be.
(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.
(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,
(ii) Bond Registrar and (iii) Paying Agent, 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
51
of Bondholders and all other records, documents and instruments relating to its
duties as such custodian, Bond Registrar and Paying Agent.
Section 8.11 Limitation on Trustee's Responsibilities Respecting
Arbitrage. Notwithstanding 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 of 1986 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 of 1986, the maximum amount which may be invested in
Nonpurpose Investments (as defined in Section 4.7 hereof) 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.
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 effect any other change herein which, in the judgment
of the Trustee, is not to the prejudice of the Trustee or the Owners
of Bonds.
52
(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) Exclusive of Supplemental Indentures permitted by Section 9.01
hereof and subject to the terms and provisions of this Section 9.02, the
Holders of not less than a majority 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, without, in each
case, the consents of all of the Holders of the Bonds then Outstanding:
(i) A change in the terms of redemption or maturity of the
principal of, premium, if any, or the Interest on any Outstanding
Bond or a reduction in the principal amount or purchase price of or
redemption premium on any Outstanding Bond or the rate of interest
thereon;
(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 created on the Trust Estate; 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).
53
(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 a majority in the
aggregate principal amount of the Bonds 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 a majority in 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.
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 opinion
of Bond Counsel, satisfactory to the Trustee, to the effect that the execution,
delivery and performance of the Supplemental Indenture will not adversely affect
the exclusion from gross income of the Qualified Stated Interest or Original
Issue Discount 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.
54
ARTICLE X
AMENDMENTS TO AGREEMENT
Section 10.01 Amendments to Agreement Not Requiring Consent of
Bondholders. Without the consent of or notice to any of the Bondholders, (a) the
Issuer may enter into, and the Trustee may consent to, any amendment, change or
modification of the Agreement or the Security Documents or (b) the Trustee may
enter into any amendment, change or modification of the Collateral Agency
Agreement or the Intercreditor Agreement, in either case as may be required (i)
by the provisions thereof or of this Indenture, (ii) for the purpose of curing
any ambiguity, defect or omission therein, (iii) so as to more precisely
identify the Project or the Collateral or to substitute or add additional
improvements or equipment to the Project or Collateral or additional rights or
interests in Property acquired in accordance with the provisions of the
Agreement, the Security Documents, the Collateral Agency Agreement or the
Intercreditor Agreement, (iv) to enter into a Supplemental Indenture as provided
herein or (v) 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. 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, the Security Documents, the
Collateral Agency Agreement or the Intercreditor Agreement without the mailing
of notice to and the approval or consent of the Holders of not less than a
majority in aggregate principal amount of the Bonds at the time Outstanding,
such written approval or consent to be procured and given in the manner set
forth in Section 9.02 hereof with respect to supplemental indentures; 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 or any Security Document (except as
otherwise set forth therein) or a change in the provisions of Sections 4.2(a),
4.2(d), 4.2(e) or 4.5 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 and may further require that an opinion of Bond Counsel be
furnished to the effect that such amendment, change or modification will not
adversely affect the exclusion of Qualified Stated Interest or Original Issue
Discount on the Bonds from gross income for Federal income tax purposes. Upon
receipt of evidence of requisite Bondholder consent as provided hereinabove, the
Trustee shall consent to such amendment, change or modification of the
Agreement, the Security Documents, the Collateral Agency Agreement or the
Intercreditor Agreement and enter into such instruments as the Company may
reasonably request in order to evidence such consent.
55
ARTICLE XI
REMARKETING AGENT
Section 11.01 Qualifications of Remarketing Agent. Any Remarketing
Agent appointed pursuant to the provisions of Section 3.04 of this Indenture
shall be, if there be such an institution willing, qualified and able to accept
the duties of the Remarketing Agent upon customary terms, a member of the
National Association of Securities Dealers, Inc., a bank or trust company or any
entity rated Baa3/Prime-3 or better, within or without the State, in good
standing and having reported capital and surplus of not less than $10,000,000
and rated Baa3/Prime-3 or better by Xxxxx'x (or a substantially equivalent
rating by S&P). Any such Remarketing Agent shall have an office in the State and
shall be reasonably acceptable to the Trustee. Written notice of such
appointment shall be given by the Company to the Trustee.
Section 11.02 Successor Remarketing Agent by Merger, Consolidation,
Etc.. Any corporation or association into which the Remarketing Agent may be
converted or merged, or 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 and
become the successor Remarketing Agent hereunder, without the execution or
filing of any instrument or any further act, deed or conveyance on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 11.03 Resignation of Remarketing Agent. The Remarketing
Agent may at any time resign by giving thirty (30) days' notice to the Issuer,
the Trustee and the Company. Such resignation shall not take effect until the
appointment of a successor Remarketing Agent.
Section 11.04 Removal of Remarketing Agent. The Remarketing Agent
may be removed at any time by an instrument in writing delivered to the Trustee
by the Company. In no event, however, shall any removal of the Remarketing Agent
take effect until a successor Remarketing Agent shall have been appointed.
Section 11.05 Appointment of Successor Remarketing Agent. In case
the Remarketing Agent shall resign or be removed, or be dissolved, or shall be
in the course of dissolution or liquidation, or otherwise become incapable of
acting as Remarketing Agent, 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 may be appointed by the Company in accordance with the provisions of
this Indenture. Every successor Remarketing Agent shall meet the qualifications
specified in Section 11.01 hereof. Any successor Remarketing Agent shall execute
and deliver an instrument accepting such appointment and thereupon such
successor, without further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor, with
like effect as if originally named as Remarketing Agent, but such predecessor
shall nevertheless, on the written request of the Company, the Trustee or the
Issuer, or of the successor, execute and deliver such instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in such successor all rights, powers, duties and obligations of such
predecessor. If no successor Remarketing Agent has accepted appointment in the
manner provided above within 90 days after the Remarketing Agent has
56
given notice of its resignation as provided above, the Remarketing Agent may
petition any court of competent jurisdiction for the appointment of a temporary
successor Remarketing Agent; provided that any Remarketing Agent so appointed
shall immediately and without further act be superseded by a Remarketing Agent
appointed by the Company as provided above.
ARTICLE XII
MISCELLANEOUS
Section 12.01. 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, or 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 acknowledgement
before a notary public or other officer empowered to take
acknowledgments or by an affidavit of a witness to such execution or
in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
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.
(b) 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.
(c) Any of the provisions of Sections 9.02 and 12.01 of this
Indenture notwithstanding, where any Bonds are registered in the name of a
Securities Depository, any request, approval, consent or vote of the Owner of
any such Bond so registered may be given or made by an electronic communication
from the Securities Depository to the Trustee and any such request, approval,
consent or vote so given or made electronically by the Securities Depository
shall be valid and effective for all purposes of this Indenture.
Section 12.02 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
57
to give to any Person, other than the parties hereto 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 and the Holders of the Bonds as
herein provided.
Section 12.03 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 12.04 Notices.
(a) Except as otherwise expressly provided herein, all notices,
certificates or other communications hereunder shall be in writing and
either shall be mailed by certified mail, postage prepaid, return receipt
requested, or sent by overnight air courier service, or personally
delivered to a representative of the receiving party, or sent by facsimile
(provided an identical notice is also sent simultaneously by mail,
overnight courier, or personal delivery as otherwise provided in this
Section 12.03). All such communications shall be mailed, sent or
delivered, addressed to the party for whom it is intended at its address
set forth below.
If to the Issuer: City of Weirton,
000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxx Xxxxxxxx 00000,
Attention: City Manager
Facsimile:
If to the Trustee: X.X. Xxxxxx Trust Company, National Association
One Oxford Center,
301 Grant Street, Suite 1100
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Institutional Trust Service
Facsimile:
With a copy to: X.X. Xxxxxx Trust Company, National Association
Institutional Trust Services
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile:
If to the Company: Weirton Steel Corporation
58
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attention: President
Facsimile:
(b) Any communication so addressed and mailed shall be deemed to be
given on the earliest of (i) when actually delivered, (ii) on the first
Business Day after deposit with an overnight air courier service, or (iii)
on the third Business Day after deposit in the United States mail, postage
prepaid, in each case to the address of the intended addressee, and any
communication so delivered in person shall be deemed to be given when
receipted for by, or actually received by, the Issuer, the Company or the
Trustee, as the case may be. If given by facsimile, a notice shall be
deemed given and received when the facsimile is transmitted to the party's
facsimile number specified above, and confirmation of complete receipt is
received by the transmitting party during normal business hours or on the
next Business Day if not confirmed during normal business hours, and an
identical notice is also sent simultaneously by mail, overnight courier,
or personal delivery as otherwise provided in this Section 12.03. Any
party may designate a change of address by written notice to the other
parties by giving at least 10 days prior written notice of such change of
address.
Section 12.05 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 12.06 Applicable Law. This Indenture shall be governed
exclusively by the applicable laws of the State.
Section 12.07 No Recourse. All covenants, stipulations, promises,
agreements and obligations of the Issuer contained in this Indenture, the
Agreement, the Deeds of Trust, the Security Agreement and all other Bond
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 Bond
Documents or otherwise based upon or in respect to the Bond 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 Bond Documents, either directly or through the Issuer or any
successor public corporation or political subdivision thereof, it being
expressly understood that the Bond 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 Bond Documents because of the creation of
the indebtedness thereby authorized, or under or by reason of the obligations,
covenants or agreements contained in the Bond 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
59
authorized, or under or by reason of the obligations, covenants or agreements
contained in the Bond 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 Bond Documents.
Section 12.08 Survival. This Indenture shall remain in full force
and effect until terminated pursuant to Article VI hereof.
Section 12.09 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 12.10 Binding Effect. This Indenture shall be binding upon
the Issuer and the Trustee and their respective successors and assigns.
Section 12.11 Intercreditor Agreement and Collateral Agency
Agreement. The Issuer hereby authorizes and directs the Trustee to enter into
the Intercreditor Agreement and the Collateral Agency Agreement in the forms
attached hereto as Composite Exhibit ___ and hereby further authorizes the
Trustee to enter into any modification, amendment, or supplement thereto or any
restatement thereof and/or to enter into any replacement or additional
intercreditor agreement as contemplated thereunder (collectively, the
"Intercreditor Modification Documents") provided that (a) the Trustee has
determined, in its sole judgment, that any such Intercreditor Modification
Document will not adversely affect the interests of the Trustee or the
Bondholders, in which event (i) the Issuer and the Trustee shall have received
an opinion of Bond Counsel to the effect that any such Intercreditor
Modification Document will not adversely affect the exclusion of Qualified
Stated Interest or Original Issue Discount on the Bonds from gross income of the
recipients thereof for federal income tax purposes and (ii) the Trustee may
request an opinion of Independent Counsel that any such Intercreditor
Modification Document complies with provisions of this Section 12.11, upon which
the Trustee may conclusively rely, or (b) such Intercreditor Modification
Documents shall have complied with Article X of this Indenture.
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)
ATTEST:
-----------------------------
60
Clerk
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
As Trustee
By
----------------------------
Authorized Officer
(SEAL)
ATTEST:
-----------------------------
-----------------------------
00
XXXXX XX XXXX XXXXXXXX )
: ss.:
COUNTY OF XXXXXXX )
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 ___ day of
_______________ 2002.
________________________________
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
On this ___ day of _______________ 2002, 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 X.X. Xxxxxx Trust Company, National Association, 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
62
EXHIBIT A
(Form of Face of Bond)
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS BOND HAS ORIGINAL ISSUE
DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE
PRICE IS $ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $
, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT OF THIS BOND FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE YIELD TO MATURITY
COMPOUNDED SEMIANNUALLY IS %.
REGISTERED REGISTERED
No. $
CITY OF WEIRTON, WEST VIRGINIA
SECURED POLLUTION CONTROL REVENUE REFUNDING BOND
(Weirton Steel Corporation Project) Series 2002
BOND RATE MATURITY DATE DATED DATE CUSIP
April 1, 2012
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 bear interest from and including ___________, 2002 on said Principal Amount
at the Bond Rate set forth on the reverse hereof, payable semiannually on the
first days of April and October in each year commencing October 1, 2002 (each an
"Interest Payment Date"), until the Issuer's obligation with respect to such
Principal Amount has been discharged.
Interest on this bond shall accrue from __________ __, 2002 and
shall be calculated as set forth on the reverse hereof. 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 X.X. Xxxxxx Trust Company, National Association, 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 _________ ___, 2002, 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 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 or wire transfer 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.
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
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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 Indenture.
X.X. Xxxxxx Trust Company, National
Association, as Trustee
By
-----------------------------
Authorized Officer
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[Reverse of Bond]
CITY OF WEIRTON, WEST VIRGINIA
SECURED POLLUTION CONTROL REVENUE REFUNDING BOND
(Weirton Steel Corporation Project) Series 2001
This bond is one of a duly authorized series of bonds limited in
aggregate principal amount to THIRTY-THREE MILLION EIGHT HUNDRED THOUSAND
DOLLARS ($33,800,000) (the "Series 2002 Bonds"), issued and authorized to be
issued for the purpose of refunding certain of the Issuer's outstanding
pollution control revenue bonds (the "Series 1989 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, a Delaware 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. All capitalized terms not defined
herein shall have the meaning set forth in the Indenture. Descriptive headings
are merely for convenience and shall have no effect on the meaning or
interpretation hereof.
The Series 2002 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 an agreement
(the "Agreement"), dated as of _________ __, 2002, 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 2002 Bonds, and assigns to the Trustee certain
right, title, and interest in the Security Documents.
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 2002 Bonds. Said additional bonds and the Series 2002
Bonds are collectively referred to herein as the "Bonds."
Reference is hereby made to the Agreement, the Security Documents,
the Collateral Agency Agreement, the Intercreditor 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.
Interest
Interest shall accrue on the principal amount of this bond from
_________ __, 2002 until April 1, 2012 or the earlier redemption of the Bonds as
at the respective rates per annum as set forth on the table below, and the
Issuer promises to pay such interest, semi-annually in arrears on April 1 and
October 1 of each year, on said principal sum in like coin or currency at such
rates, with the first such payment commencing on October 1, 2002. The Company
shall furnish an Officer's Certificate to the Trustee specifying the applicable
interest rate on or prior to April 1 and October 1, 2003 and April 1 and October
1, 2004.
Interest Period Interest Rate
--------------- -------------
1. From _______ __, 2002 [Issue Date] 1. 0.5%
to March 31, 2003
2. From April 1, 2003 to March 31, 2005 2. The lesser of (a) the sum of 0.5%
plus Contingent Interest Rate (as
defined below) and (b) 9.0%.
3. From April 1, 2005 to March 31, 2012 4. 9.0% per annum.
"Contingent Interest Rate" shall be expressed as a percentage
determined by dividing (a) 50% of the Excess Cash Flow by (b) the sum of the
principal amount of all Outstanding Bonds (including this bond) and the
principal amount of all Outstanding Senior Secured Notes at the time of such
determination.
Interest on the Bonds shall be computed on the basis of a 360-day
year of twelve 30-day months. The interest so payable on any April 1 and October
1 will, except as otherwise provided in the Indenture, be paid to the person in
whose name this bond is registered at the close of business on the March 15 or
September 15 preceding such April 1 and October 1, whether or not such day is a
Business Day (as defined in the Indenture); provided that Interest, if any, may
be paid, at the option of the Issuer, by mailing a check therefor payable to the
registered holder entitled thereto at his last address as it appears on the Bond
Register. If the date of redemption or purchase of this bond is other than an
Interest Payment Date, then the amount of any accrued and unpaid Interest due
and payable on this bond at the time of any such redemption or purchase shall be
equal to the amount determined by multiplying (i) the interest rate in effect as
of the most recent Interest Payment Date prior thereto by (ii) a fraction, the
numerator of which is the actual number of days elapsed in the period for which
Interest is payable on the date of redemption or purchase, and the denominator
of which is 360.
Unless otherwise agreed by the Issuer and the holder of any Bond,
payments by the Issuer in respect of the Bonds (including principal, premium, if
any, and Interest) shall be paid to holders of the Bonds in immediately
available funds. If the date of maturity of Interest on or principal of the
Bonds or the date fixed for redemption of any Bond shall not be a Business Day,
then payment of Interest, or principal will be made on the next succeeding
Business Day, with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no Interest shall accrue for the period
after such date.
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The Bonds are issuable as fully registered bonds without coupons in
the denominations of $1,000 or any integral multiple of $1,000 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.
Redemption
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 two hundred ten (210) 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; or
(ii) a final resolution that Qualified Stated Interest or Original
Issue Discount on any Bond is includable in the gross income of the recipient
thereof for Federal income tax purposes (other than by reason of the recipient
being a "substantial use" of the Project or a "related person" to a "substantial
user," as such terms are defined in Section 103(b)(13) of the Code of 1954),
that, under applicable law, is not subject to further appeal, review or
modification through proceedings or otherwise, including (1) by the expiration
of a statute of limitations or a period for the filing of claims appealing from
adverse determinations, or recovering any refund (including by offset), (2) by a
decision, judgment, decree, or other order by a court of competent jurisdiction,
which has become final and unappealable, or (3) by closing agreement, an
accepted offer in compromise under the code, or comparable agreements under
United States federal income tax law or the laws of other jurisdictions;
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provided, however, that no Determination of Taxability described in clause (i)
above shall be deemed to have occurred if the Trustee shall have received an
unqualified written opinion of Bond Counsel satisfactory to the Trustee, in form
and substance satisfactory to the Trustee, to the effect that no 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 Qualified Stated Interest or Original Issue Discount on any
Bond to be includable in the gross income of the recipient thereof for Federal
income tax purposes (other than by reason that such Qualified Stated Interest or
Original Issue Discount (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 defined in Section 103(b)(13) of the Code of 1954, or (ii) is deemed
an item of tax preference, including without limitation an item subject to any
alternative minimum tax). The Company shall give written notice to the Issuer
and the Trustee within thirty (30) days after becoming aware that an Event of
Taxability has occurred.
If the Issuer or the Trustee receives written notice from any Owner
of Bonds or taxing authority stating that a taxing authority proposes to include
Qualified Stated Interest or Original Issue Discount on any Bond in the gross
income of a holder or holders of Bonds for the reasons described herein or any
other proceeding has been instituted which may lead to a final resolution as
described in clause (ii) of the definition of "Determination of Taxability" or
to an Event of Taxability (a "Tax Proceeding"), then the Trustee and/or the
Issuer shall promptly give written notice to the Company of such Tax Proceeding
and the Company shall have the right, at its own expense, to participate in and
control the Tax Proceeding to the same extent that the Issuer would otherwise
have the right to participate in and control the Tax Proceeding. The Issuer
hereby agrees to execute all documents reasonably necessary to permit the
Company to participate in and control any such Tax Proceeding and neither the
Trustee nor the Issuer shall, without the prior written consent of the Company
(which consent shall not be unreasonably withheld) agree to the entry of any
judgment or enter into any settlement with respect to the Tax Proceeding.
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 or any substantial portion of the Hot Mill
Collateral, Tandem Mill Collateral or the Tin Mill Collateral, to
the extent owned and operated by the Company (each, a "Facility")
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 or such
substantial portion of a Facility 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
4
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 or such substantial
portion of a Facility 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 or any substantial portion of a Facility 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 or such substantial
portion of a Facility 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 any substantial portion of a Facility; 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 or
any substantial portion of a Facility for the purposes for which
such Project or such substantial portion of a Facility was
originally constructed, or such technological or other changes shall
have occurred that, in the reasonable opinion of the Company
expressed in a certificate signed by an Authorized Representative of
the Company, the Project or such substantial portion of a Facility
is rendered uneconomic, impractical or unfeasible for the purposes
for which it was originally constructed.
The 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 on any Interest
Payment Date on or after April 1, 2004, 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, if any, to the date set for redemption if during
the 12-month period beginning on April 1 of years indicated below:
Year Redemption Price
---- ----------------
2004 102%
2005 101%
2006 and thereafter 100%
5
The Bonds shall also be redeemed prior to maturity by the Issuer in
whole or in part on the first Interest Payment Date for which adequate notice of
redemption can be given hereunder, in the amount of any prepayment of the Bond
Loan required under Section 8.2(b) of the Agreement at a redemption price equal
to 100% of the principal amount redeemed plus accrued Interest thereon to the
redemption date
In the event of redemption of less than all the Bonds Outstanding,
selection of the Bonds will be made by lot and, for such purposes, the Trustee
shall treat each Bond in a denomination greater than $1,000 in principal amount
at maturity as if it were that number of separate Bonds derived by dividing its
denomination by $1,000.
Whenever Bonds are to be redeemed as aforesaid or purchased pursuant
to Section 3.05 of the Indenture, the Trustee shall give written notice of the
redemption or purchase of the Bonds in the name of the Issuer stating: (i) the
Bonds or portions thereof to be redeemed or purchased; (ii) the redemption or
purchase date; (iii) the redemption or purchase 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, at least thirty (30) days and not more than
forty-five (45) days prior to the redemption or purchase date, to the registered
owners of any Bonds to be redeemed or purchased 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 or
purchase 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 or purchase price of this bond or the date fixed for
redemption or purchase of this bond shall not be a Business Day, then the
payment of Interest or premium on or the principal or purchase 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 or purchase, as the
case may be, and no Interest attributable to any such delay shall accrue.
"Business Day" shall mean a day other than a Saturday, a Sunday or a legal
holiday on which national banks located in the State of New York or the State of
West Virginia or any city where the Trustee maintains its place of business for
performance of its obligations under the Indenture are not open for general
banking business.
Other Terms
In the event that there shall occur a Designated Event, the Owner of
this bond may tender this bond for purchase and require the purchase of this
bond (but only in
6
denominations of $1,000 or any integral multiple thereof) on the Repurchase
Date, all as more fully described in the Indenture.
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.
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
PLEASE INSERT TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE
7
________________________________________________________________________________
________________________________________________________________________________
(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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