second supplemental bond trust indenture · refund the 2003 bonds, to advance refund the 200413...
TRANSCRIPT
SECOND SUPPLEMENTAL BOND TRUST INDENTURE
between
THE SHEPHERD UNIVERSITY BOARD OF GOVERNORS
and
WESBANCO BANK, INC.,as Bond Trustee
Dated as ofDecember 1, 2013
Relating to
$6,730,000 The Shepherd University Board of Governors Refunding Revenue Bonds,Series 2013
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION AND AMENDMENTSOF ORIGINAL TRUST INDENTURE..
Section 1.01.Section 1.02.Section 1.03.
Definitions...........,.....................,.....Rule of Construction.Amendments of Original Trust Indenture...
ARTICLE II -THE 2013 BONDSSection 2.01.Section 2.02.Section 2.03.Section 2.04.Section 2.05.Section 2.06.Section 2.07.Section 2.08.Section 2.09.Section 2.10.Section 2.11.Section 2.12.Section 2.13.
Authorization of2013Denominations, Date, Maturity, NumberingPayment of Principal of and Interest on the 2013 Bonds..
Maturity Date, Interest Rates on 2013 Bonds.,Form of2013 BondsUse of Securities DepositoryBonds Mutilated, Lost, Destroyed orExecution of 2013 Bonds; Limited Obligations; No Liability of State ..Transfer of2013 Bonds .. ~ .Exchange of2013 Bonds .. ~ .Bond Register....,....,.................... .. ~ .Temporary Bonds........................ .. ~ .
ARTICLE 111 ISSUANCE OF 2013 BONDS; APPLICATION OF PROCEEDSSection 3.01.Section 3.02.Section 3.03.Section 3.04.
Delivery of the 2013Application ofProceeds of the 2013 Bonds.Establishment and Application of 2013 Bonds Costs of Issuance Fund .Validity of2013 Bonds.
ARTICLE IV REDEMPTION QF 2013 BoNDS.....Section 4.01.Section 4.02.Section 4.03.Section 4.04.Section 4.05.
Terms ofRedemption,Selection of 2013 Bonds for Redemption...Notice o1°Redemption................................Partial Redemption of 2013 Bonds.Effect ofRedemption.................................
ARTICLE V PARTICULAR COVENANTSSection 5.01.Section 5.02.
Continuing Disclosure ..[RESERVED],
ARTICLE VI MISCELLANEOUS...Section 6.01.Section 6.02.Section 6.03.Section 6.04.Section 6.05.
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Acts of Officers.......Confirmation of Indenture..SeverabilityApplicable Law..Counterpaits...
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This SECOND SUPPLEMENTAL BOND TRUST INDENTURE (the"Second Supplemental lndenture"), dated as of December 1, 2013, between THE SHEPHERDUNIVERSITY BOARD OF GOVERNORS, a public body and agency of the State of WestVirginia (the "lssuer"), and WESBANCO BANK, INC., a banking corporation duly organizedand validly existing under the laws of the State of West Virginia and duly authorized to exercisecorporate trust powers under the laws of the State of West Virginia and qualified to accept andadminister the trusts hereby created, with its principal place of trust business located inWheeling, West Virginia, as Bond Trustee (in such capacity herein, together with any successorin such capacity, called the "Bond Trustee"),
W ITNESSETH:
WHEREAS, pursuant to the authority contained in Chapter 1813, Article 10 andChapter 18, Article 23 of the Code of West Virginia, 1931, as amended (collectively, the "BondAct"), the Issuer has previously issued its Revenue Bonds (Shepherd University ResidenceFacilities Projects), Series 2005, in the original aggregate principal amount of $22,925,000 (the"2005 Bonds"), pursuant to a Bond Trust Indenture dated as of May l, 2005 (the "Original TrustIndenture"), between the Issuer and the Bond Trustee, for the purposes of financing the costs ofthe acquisition and construction of a student residence facility on Shepherd University's WestCampus in Shepherdstown, West Virginia and refunding the Issuer's University FacilitiesRevenue Notes, Series 2004A, issued on September 9, 2004, in the original aggregate principalamount of$l,865,000; and
WHEREAS, pursuant to the Bond Act, the Issuer has also previously issued itsRevenue Bonds (Shepherd University Wellness Center Project), Series 2007, in the originalaggregate principal amount of $200090,000 (the "2007 Bonds"), as a series of Additional Bondsunder the Original Trust Indenture, pursuant to a First Supplemental Bond Trust Indenture datedas of October 1, 2007 (the "First Supplemental Indenture"), between the Issuer and the BondTrustee, supplementing and amending the Original Trust Indenture, for the purpose of financingthe costs of the planning, design, acquisition, construction and equipping of a new Wellnesscenter on Shepherd University's campus in Shepherdstown, West Virginia and other capitalimprovements for use by Shepherd University; and
WHEREAS, the Issuer has requested that the Original Trust Indenture beamended pursuant to the provisions thereof to provide for the issuance by the Issuer ofAdditional Bonds in one series in the aggregate principal amount of $6,730,000 pursuant to theBond Act, Chapter 1813, Article 19 and Chapter 13, Article 2G of the Code of West Virginia,1931, as amended (collectively, the "Act") for the purpose of refunding (a) The ShepherdUniversity Board of Governors Student Fee Revenue Bonds, Series 2003, issued on January 22,2003, in the original principal amount of $5,990,000 (the "2003 Bonds"), and (b) The ShepherdUniversity Board of Governors Infrastructure Revenue Bonds, Series 200413, issued onSeptember 9, 2004, in the original principal amount of $3,405,000 (the "2004B Bonds" andtogether With the 2003 Bonds, the "Bonds to be Refunded"), and
WHEREAS, the Issuer has determined to issue its Refunding Revenue Bonds,Series 2013 in an aggregate principal amount of $6,730,000 (the "2013 Bonds") to currently
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refund the 2003 Bonds, to advance refund the 200413 Bonds and to pay costs of issuing the 2013Bonds and related costs, and
WHEREAS, there has been delivered to the Bond Trustee the documentsrequired by Section 2.14 of the Original Trust Indenture for the 2013 Bonds to be issued asAdditional Bonds under the Original Trust Indenture on parity with the 2005 Bonds and the 2007Bonds (collectively, the "Prior Bonds"), and the Issuer has received the Written consent of MBIAInsurance Corporation, as Bond Insurer for the 2005 Bonds and the 2007 Bonds, to this SecondSupplemental Indenture, and
WHEREAS, the 2013 Bonds, together with the Bond Trustee's certificate ofauthentication thereon, are to be in substantially the form of Exhibit A attached hereto, withappropriate variations, omissions and insertions as permitted or required by this SecondSupplemental Indenture, and
WHEREAS, the Issuer has received the approval of the Higher Education PolicyCommission (the "HEPC") of West Virginia for the refunding of the Bonds to be Refunded andthe issuance of the 2013 Bonds in the form of a resolution duly adopted by the HEPC on August9, 2013 (the "HEPC Resolution"); and
WHEREAS, the Issuer has received the express written consent and direction ofthe Governor to issue the 2013 Bonds and to refund the Bonds to be Refunded as required bySection 5-1-28 of the Code of West Virginia, 193 1, as amended, and
WHEREAS, the execution and delivery of this Second Supplemental Indentureand the issuance of the 2013 Bonds have been in all respects duly and validly authorized by aresolution duly adopted by the Issuer on July 30, 2013, as supplemented and amended by thesupplemental resolution adopted by the Issuer on September 26, 2013 (collectively, the "IssuerReso1ution"), and
WHEREAS, the 2013 Bonds shall be payable from Pledged Revenues, as definedin the Original Trust Indenture, and other moneys legally available to be used for such purposes,and
WHEREAS, the 2013 Bonds shall be secured by the Pledged Revenues, asdefined in the Original Trust Indenture, and the funds and accounts held by the Bond Trustee asdescribed herein, on parity with the Prior Bonds, subject to the terms, conditions, limitations andrestrictions contained in the Original Trust Indenture as previously amended and containedherein, and the Issuer, for the benefit of the Bondholders, represents and Warrants that, subject tothe security interest therein granted to the holders of the 2003 Bonds and the 2004B Bonds incertain portions thereof, which security interest Will be terminated upon the defeasance of theBonds to be Refunded with the proceeds of the 2013 Bonds and other funds available for suchpurpose, there will be no other security interest in the Pledged Revenues and, upon the issuanceof the 2013 Bonds, the 2005 Bonds, the 2007 Bonds and the 2013 Bonds will be on parity witheach other secured by the Pledged Revenues, as defined in the Original Trust Indenture, and
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WHEREAS, all things necessary to make the 201 3 Bonds, when authenticated bythe Bond Trustee and issued as in this Second Supplemental Indenture and the Original TrustIndenture provided, the valid, binding and legal obligations of the Issuer according to the importthereof, and to constitute the Original Trust Indenture, as previously supplemented by the FirstSupplemental Indenture and as supplemented by this Second Supplemental Indenture, a validassignment and pledge of the Pledged Revenues for the payment of the principal of and intereston the 2013 Bonds, on parity With the Prior Bonds, and a valid grant of a security interest in thefunds and accounts described herein and in the proceeds thereof, and the creation, execution anddelivery of this Second Supplemental Indenture and the creation, execution and issuance of the2013 Bonds, subject to the terms hereof and the Original Trust Indenture as previously amendedby the First Supplemental Indenture, have in all respects been duly authorized.
Now, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTUREPROVIDES:
This Second Supplemental Indenture supplements and amends the Original TrustIndenture, as previously supplemented and amended, as herein provided, and is incorporated intothe Original Trust Indenture.
That as security for payment of the principal of and premium, if any, and intereston the Prior Bonds, the 2013 Bonds and any Additional Bonds hereafter issued, according totheir tenor and effect, and to secure the performance and observance by the Issuer of all thecovenants expressed or implied in the Original Trust Indenture, the First Supplemental Indenture,herein and in the Bonds, does hereby irrevocably reaffirm the provisions of the Original TrustIndenture whereby the Issuer did grant, bargain, sell, convey, transfer, assign and pledge unto theBond Trustee, and its successors in trust and assigns forever, and does hereby reaffirm the grantto the Bond Trustee made in the Original Trust Indenture of a security interest in:
I .
All rights, title and interest of the Issuer in and to the Pledged Revenues, asdefined in the Original Trust Indenture, and the present and continuing right to make claim for,collect and receive such Pledged Revenues, subject to the terms and conditions of the OriginalTrust Indenture, as supplemented and amended by the First Supplemental Indenture and thisSecond Supplemental Indenture (the "Indenture") and subj ect to the rights of the holders of the2003 Bonds and the 200413 Bonds, which rights of the holders of the 2003 Bonds and the 2004BBonds with respect to the Pledged Revenues will be terminated upon the defeasance of the 2003Bonds and the 2004B Bonds with the proceeds of the 2013 Bonds and other funds available forsuch purpose, as further described above.
II.
All moneys and securities held by the Bond Trustee in any fund or account underthe Indenture and earnings thereon, excepting only the Rebate Fund.
TO HAVE AND TO HOLD all and Singular the foregoing (the "Trust EState"),Whether now owned or hereafter acquired, unto the Bond Trustee and its respective successors in
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trust and assigns forever, in trust nevertheless, upon the terms and trusts set forth in the Indenturefor the equal and proportionate benefit and security of all present and future owners of theBonds, except as otherwise provided herein, Without preference of any Bond over any other, andfor enforcement of the payment of the Bonds in accordance With their terms, and all other sumspayable hereunder or on the Bonds and for the performance of and compliance with theobligations, covenants and conditions of the Indenture, as if all the Bonds at any timeOutstanding had been authenticated, executed and delivered simultaneously with the executionand delivery of this Supplemental Trust Indenture, all as herein set forth,
PROVIDED, HOWEVER, that if the Issuer shall Well and truly pay, or cause tobe paid, the principal of and interest on the Bonds, together with any redemption premium due erto become due thereon, at the times and in the manner mentioned in the Bonds according to thetrue intent and meaning thereof, and shall cause the payments to be made as required herein, andshall Well and truly keep, perform and observe all the covenants and conditions pursuant to theterms of the Indenture to be kept, performed and observed by it, and shall pay or cause to be paidto the Bond Trustee and any Paying Agent all sums of money due or to become due inaccordance with the terms and provisions of the Indenture, then the Indenture and the rightsgranted by the Indenture shall cease, determine and be void, otherwise the Indenture shall be andremain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by andbetween the parties hereto that all Bonds are to be issued, authenticated and delivered, and thatall the Trust Estate is to be held and applied, subject to the further covenants, conditions,releases, uses and trusts set forth in the Indenture, and the Issuer, for itself and its successors,does hereby covenant and agree to and with the Bond Trustee and its respective successors insaid trust, for the benefit of those who shall hold the Bonds, or any of them, as follows:
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ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION AND AMENDMENTSOF ORIGINAL TRUST INDENTURE
Section 1.01. Definitions. All items herein shall have the meaning set forth inSection 1.01 of the Original Trust Indenture except as otherwise indicated herein and except thatthe definitions in Section 1.01 are amended or supplemented as follows:
"Act" means, collectively, Chapter 1813, Article 10, Chapter 1813, Article 19,Chapter 18, Article 23 and Chapter 13, Article 2G of the Code of West Virginia, 1931, asamended.
"Bond Register" means the bond registration books maintained by the BondTrustee pursuant to Section 2. 12 hereof.
"Bonds" means the 2005 Bonds, the 2007 Bonds, the 2013 Bonds and anyAdditional Bonds hereafter issued Within the terms, restrictions and conditions contained in theOriginal Trust Indenture.
"Bonds to be Refunded" means the 2003 Bonds and the 200413 Bonds.
"Costs of Issuance" means all items of expense directly or indirectly payable byor reimbursable tc the Issuer and related to the authorization, issuance, sale and delivery of the2013 Bonds, including but not limited to costs of preparation and reproduction of documents,printing expenses, filing and recording fees, initial fees and charges of the Bond Trustee and itscounsel, Bond Counsel fees and charges, Underwriter's counsel fees and charges, other legal feesand charges, fees and disbursements of consultants and professionals, fees and charges forpreparation, execution and safekeeping of the 2013 Bonds, market studies, fees and expenses ofthe Rating Agencies, any UnderWriter's compensation Withheld from the Proceeds, and any othercost, charge or fee in connection with the original issuance of the 2013 Bonds,
"First Supplemental Indenture" shall mean the First Supplemental Bond TrustIndenture between the Issuer and the Bond Trustee dated as of October 1, 2007, supplementingand amending the Original Trust Indenture.
"Ho1der," "Bondholder" or "Owner," when used with respect to a 2013 Bond,means the Person in Whose name such 2013 Bond is registered.
"Indenture" shall mean the Original Trust Indenture as supplemented andamended by the First Supplemental Indenture and the Second Supplemental Indenture.
"Interest Payment Date" means, with respect to the 2013 Bonds, June 1, 2014,and each June 1 and December 1 thereafter and any other date on which Debt Service Chargesare otherwise due on the 201 3 Bonds.
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"Issuer Resolution" means the resolution adopted by the Issuer on July 30, 2013,as supplemented and amended by the supplemental resolution adopted by the Issuer onSeptember 26, 2013, authorizing the refunding of the Bonds to be Refunded through the issuanceof the 2013 Bonds.
"Mandatory Redemption Requirements" means the respective amounts designatedas such with respect to the 2013 Bonds pursuant to Subsection 4.01(B) hereof.
"Mandatory Sinking Account Payment" means the amount required bySubsection 4,01(B) hereof to be paid by the Bond Trustee on any single date for the retirement of2013 Bonds.
"Maturity Date" means the Maturity Date set forth in Section 2.05 hereof.
"Maximum Annual Debt Service" means the maximum amount of principal andinterest that will come due, Whether by Mandatory Sinking Account Payments or maturity, onthe 2005 Bonds, and the 2007 Bonds and the 2013 Bonds in the then current or any succeedingFiscal Year.
"Original Trust Indenture" shall mean the Bond Trust Indenture dated as of May1, 2005, by and between the Issuer and the Bond Trustee.
"Outstanding," when used as of any particular time with reference to 2013 Bonds,means (subject to the provisions of Section 12.09 of the Original Trust Indenture) all 2013 Bondstheretofore, or thereupon being, authenticated and delivered by the Bond Trustee under theIndenture except: (1) 2013 Bonds theretofore cancelled by the Bond Trustee or surrendered tothe Bond Trustee for cancellation; (2) 2013 Bonds with respect to which all liability of the Issuershall have been discharged in accordance with Section 10.02 of the Original Trust Indenture,including 2013 Bonds (or portions of 2013 Bonds) referred to in Section 12.10 of the OriginalTrust Indenture, and (3) 2013 Bonds for the transfer or exchange of or in lieu of or in substitutionfor which other 2013 Bonds shall have been authenticated and delivered by the Bond Trusteepursuant to the Indenture.
"Principal Corporate Trust Office" means, for notice purposes: the office of theBond Trustee at 1 Bank Plaza, Wheeling, West Virginia 26003, Attn: Corporate TrustDepartment, and for purposes of presentation of 2013 Bonds for payment or transfer: the ofiiceof the Bond Trustee at l Bank Plaza, Wheeling, West Virginia 26003, Attn: Corporate TrustDepartment.
"Principal Payment Date" means, with respect to a 2013 Bond, the date on Whichprincipal of such 2013 Bond becomes due and payable, Whether by maturity, redemption,acceleration or otherwise.
"Prior Bonds" means the 2005 Bonds and the 2007 Bonds.
"Proceeds" means the Hrst offering price of the 2013 Bonds.
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"Redemption Price" means, with respect to any 2013 Bond (or portion thereof),the price to be paid upon redemption as set forth in Article IV of this Second SupplementalIndenture.
"Requisitign" means a document signed by an Authorized Representativedirecting the Bond Trustee to make the payments described therein from the Cost of IssuanceFund.
"Second Supplemental Indenture" means this Second Supplemental Bond TrustIndenture between the Issuer and the Bond Trustee dated as of December 1, 2013, supplementingand amending, the Original Trust Indenture.
"Series," when used With respect to the 2013 Bonds, means all the 2013 Bondsdesignated as being of the same series, authenticated and delivered in a simultaneous transaction,and any 2013 Bonds thereafter authenticated and delivered upon a transfer or exchange or in lieuof or in substitution for such 2013 Bonds as herein provided.
"Special Record Date" means the date established by the Bond Trustee pursuantto Subsection 2.03(B) hereof as a record date for the payment of defaulted interest on the 2013Bonds.
"2003 Bonds" means The Shepherd University Board of Governors Student FeeRevenue Bonds, Series 2003, issued on January 22, 2003, in the original principal amount of$5,990,000.
"2()04B Bonds" means The Shepherd University Board of GovernorsInfrastructure Revenue Bonds, Series 200483 issued on September 9, 2004, in the originalprincipal amount of $3,405,000.
"2004 B Bonds Escrow Agreement" means that certain Escrow Agreement datedas of December 2, 2013, by and between the Issuer and WesBanco Bank, Inc., as EscrowTrustee, relating to the defeasance of the 200413 Bonds.
"2005 Bonds" means The Shepherd University Board of Governors RevenueBonds (Shepherd University Residence Facilities Projects), Series 2005, issued on May 24, 2005,in the original principal amount of $22,925,000
"2007 Bonds" means The Shepherd University Board of Governors RevenueBonds (Shepherd University Wellness Center Project), Series 2007, issued on October 30, 2007,in the original principal amount of $20,090,000
"2013 Bonds" means The Shepherd University Board of Governors RefundingRevenue Bonds, Series 2013, authorized by, and at any time Outstanding pursuant to, thisSecond Supplemental Indenture.
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"2013 Bonds Costs of Issuance Fund" means the trust fund by that nameestablished pursuant to Section 3.03 hereof.
Section 1.02. Rule of Construction. Unless the context clearly indicates to thecontrary, the rules set forth in Section 1.03 of the Original Trust Indenture shall apply to thisSecond Supplemental Indenture.
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Section 1.03. Amendments of Original Trust Indenture.
[Reserved]
8
ARTICLE II
THE 2013 BONDS
Section 2.01. Authorization of 2013 Bonds. There shall be issued and securedby the Indenture one series of 2013 Bonds to be known and designated as "The ShepherdUniversity Board of Governors Refunding Revenue Bonds, Series 2013." The aggregateprincipal amount of the 2013 Bonds that may be issued and Outstanding under the Indentureshall not exceed $6,730,000.
The Indenture constitutes a continuing agreement with the Holders from time totime of the 2013 Bonds to secure the full payment of the principal of and premium (if any) andinterest on all the 2013 Bonds, and the payment of all other amounts due under the Indenture,subject to the covenants, provisions and conditions contained in the Indenture.
Section 2.02. Denominations, Date, Maturity, Numbering. The 2013 BondsShall be delivered in the form of fully registered 2013 Bonds in Authorized Denominations. The2013 Bonds shall be registered initially in the name of "Cede & Co.," as nominee of theSecurities Depository and shall be evidenced by one Bond for each Maturity of the respectiveseries of the 2013 Bonds in the total aggregate principal amount of the 2013 Bonds, Registeredownership of the 2013 Bonds, or any portion thereof, may not thereafter be transferred except asset forth in Sections 2.07 and 2.10 hereof. The 2013 Bonds shall be dated as of December 2,2013, and shall hear interest from the most recent Interest Payment Date to which interest has beenpaid or duly provided for or, if no interest has been paid or duly provided for, from the dated date,payable on each Interest Payment Date until the date of maturity or redemption, which ever firstoccurs. The 2013 Bonds shall mature (subject to prior redemption) on their respective MaturityDates, The 2013 Bonds shall be numbered in such manner as shall be determined by the BondTrustee. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months.Any such interest not so punctually paid or duly provided for shall forthwith cease to be payableto the Bondholder on such Record Date and shall be paid to the Holder in whose name the Bondis registered at the close of business on a Special Record Date for the payment of such defaultedinterest to be fixed by the Bond Trustee, notice of which shall be given by mail, first-classpostage prepaid, by the Bond Trustee to the Bondholders not less 10 days prior to such SpecialRecord Date, to each Holder of a 2013 Bond at the address of each Holder as it appears on theBond Register.
Section 2.03. Payment of Principal of and Interest on the 2013 Bonds.
(A) The principal or Redemption Price of the 2013 Bonds shall be payable bycheck in lawful money of the United States of America at the Principal Corporate Trust Office.Interest on the 2013 Bonds shall be paid to the Person Whose name appears on the Bond Registeras the Holder thereof as of the close of business on the Record Date for each Interest PaymentDate. Payment of the interest on the 2013 Bonds shall be made by check mailed by first classmail to such Holder at its address as it appears on such registration books, or, upon the writtenrequest of any Holder of at least $1,000,000 in aggregate principal amount of 2013 Bonds,submitted to the Bond Trustee at least one Business Day prior to the Record Date, by wiretransfer in immediately available funds to an account Within the United States of America
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designated by such Holder, provided, however, as long as Cede & Co. is the Holder of the 2013Bonds, said principal or Redemption Price and interest payments shall be made to Cede 84 Co. byWire transfer in immediately available funds. CUSIP number identification shall accompany allpayments of principal or Redemption Price and interest, whether by check or by wire transfer.
(B) Defaulted Interest with respect to any 2013 Bond shall cease to be payableto the Holder of such 2013 Bond on the relevant Record Date and shall be payable to the Holderin whose name such Bond is registered at the close of business on the Special Record Date forthe payment of such Defaulted Interest, which Special Record Date shall be fixed in thefollowing manner: The Issuer shall notify the Bond Trustee and the Bond Insurer in Writing ofthe amount of Defaulted Interest proposed to be paid on each 2013 Bond and the date of theproposed payment (Which date shall be such as Will enable the Bond Trustee to comply with thesecond sentence hereafter), and shall deposit With the Bond Trustee at the time of such notice anamount of money equal to the aggregate amount proposed to be paid in respect of such DefaultedInterest or shall make arrangements satisfactory to the Bond Trustee for such deposit prior to thedate of the proposed payment. Money deposited with the Bond Trustee shall be held in trust forthe benefit of the Holders of the 2013 Bonds entitled to such Defaulted Interest as provided inthis Section. Following receipt of such funds the Bond Trustee shall hx a Special Record Datefor the payment of such Defaulted Interest, which shall be not more than 15 nor less than 10 daysprior to the date of the proposed payment and not less than 10 days after the receipt by the BondTrustee of the notice of the proposed payment. The Bond Trustee shall promptly notify theIssuer of such Special Record Date and, in the name and at the expense of the Issuer, shall causenotice of the proposed payment of such Defaulted Interest and the Special Record Date thereforto be mailed, first-class postage prepaid, not less than 10 days prior to such Special Record Date,
Interest
to each Holder of a 2013 Bond at the address of such Holder as it appears on the Bond Register.
Section 2.04. [RESERVED]
Section 2.05. Maturity Date, Interest Rates on 2013 Bonds.
The 2013 Bonds shall mature in the amounts on the dates and bear interestas follows:
Maturity1 >(June
20142015201620172018201920202021
2022202320252027
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Amount~$ 175,000
355,000365,000380,000390,000400,000410,000420,000435,000445,000700,000500,000
10
Rate3.000%3.0003.0003.0003.0002.1003.0003.0003.0003.0003.2503.625
Section 2.06. Form of 2013 Bonds. The 2013 Bonds shall be initially insubstantially the form set forth in Exhibit A hereto, with necessary or appropriate variations,omissions and insertions as permitted or required hereby.
Section 2.07. Use of Securities Depository. Notwithstanding any provision ofthis Second Supplemental Indenture to the contrary:
(A) The 2013 Bonds shall be initially issued as provided in Section 2.02.Registered ownership of the 2013 Bonds, or any portion thereof, may not thereafter betransferred except:
(1) To any successor of the Securities Depository or its nominee, or to anysubstitute depository designated pursuant to Clause (2) of this Subsection (A) ("substitutedepository"), provided, that any successor of the Securities Depository or substitutedepository shall be qualified under any applicable laws to provide the service proposed tobe provided by it;
(2) To any substitute depository designated by the Issuer upon (a) theresignation of the Securities Depository or its successor (or any substitute depository orits successor) from its functions as depository or (b) a determination by the Issuer that theSecurities Depository or its successor (or any substitute depository or its successor) is nolonger able to carry out its functions as depository, provided that any such substitutedepository shall be qualified under any applicable laws to provide the services proposedto be provided by it; or
(3) To any person as provided below, upon (a) the resignation of theSecurities Depository or its successor (or substitute depository or its successor) from itsfunctions as depository; provided that no substitute depository can be obtained or (b) adetermination by the Issuer that it is in the best interests of the Issuer to remove theSecurities Depository or its successor (or any substitute depository or its successor) fromits functions as depository.
(B) In the case of any transfer pursuant to Clause (1) or Clause (2) ofSubsection (A), upon receipt of the Outstanding 2013 Bonds by the l3ondTrustee, together witha Certilicate of the Issuer to the Bond Trustee, a single new 2013 Bond shall be executed anddelivered for each Series of 2013 Bonds in the aggregate principal amount of the 2013 Bonds ofsuch Series or Subseries, as applicable, then Outstanding, registered in the name of suchsuccessor or such substitute depository, or their nominees, as the case may be, all as specified insuch Certificate of the Issuer. In the case of any transfer pursuant to Clause (3) ofSubsection (A), upon receipt of the Outstanding 2013 Bonds by the Bond Trustee, together witha Certificate of the Issuer to the Bond Trustee, new 2013 Bonds shall be executed and deliveredand registered in the names of such Persons as are requested in such a Certificate of the Issuer,subject to the limitations of Section 2.02, provided the Bond Trustee shall not be required todeliver such new 2013 Bonds within a period less than 60 days from the date of receipt of such a
20302033
825,000930,000
4.0004.375
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11
Certilicate of the Issuer. Any reasonable costs incurred pursuant hereto shall be at the Issuer'sexpense.
(C) In the case of partial redemption or an advance refunding of the 2013Bonds evidencing all or a portion of the principal amount Outstanding, the Securities Depositoryshall make an appropriate notation on the 2013 Bonds indicating the date and amounts of suchreduction in principal, in form acceptable to the Bond Trustee.
(D) The Issuer and the Bond Trustee shall be entitled to treat the Person inWhose name any 2013 Bond is registered as the Bondholder thereof for all purposes of theIndenture and any applicable laws, notwithstanding any notice to the contrary received by theBond Trustee or the Issuer, and the Issuer and the Bond Trustee shall have no responsibility fortransmitting payments to, communicating With, notifying or otherwise dealing with anybeneficial owners of the 2013 Bonds. Neither the Issuer nor the Bond Trustee will have anyresponsibility or obligations, legal or otherwise, to the beneiicial owners or to any other partyincluding the Securities Depository or its successor (or substitute depository or its successor),except for the Holder of any 2013 Bond.
(E) So long as the Outstanding 2013 Bonds are registered in the name of Cede& Co. or its registered assign, the Issuer and the Bond Trustee shall cooperate With Cede & Co.,as sole registered Bondholder, and its registered assigns in effecting payment of the principal ofand premium, if any, and interest on the 2013 Bonds by arranging for payment in such mannerthat funds for such payments are properly identified and are made immediately available on thedate they are due, all as provided in the blanket Letter of Representations between the Issuer andthe Securities Depository.
(F) Notwithstanding anything to the contrary contained in the Indenture, forso long as Cede & Co., as nominee of the Securities Depository, is the sole registered owner ofthe 2013 Bonds, (i) all tenders and deliveries of 2013 Bonds under the provisions of this BondIndenture shall be made pursuant to the Securities Depository's procedures as in effect from timeto time and neither the Issuer nor the Bond Trustee shall have any responsibility for or liabilitywith respect to the implementation of such procedures and (ii) any requirement for noticecontained herein may be satisfied by Electronic Means.
Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shallbecome mutilated, the Issuer, at the expense of the Holder of said Bond, shall execute, and theBond Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and number inexchange and substitution for the Bond so mutilated, but only upon surrender to the BondTrustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Bond Trusteeshall be cancelled by it and delivered to, or upon the order of, the Issuer. If any Bond shall belost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to theIssuer and the Bond Trustee and, if such evidence be satisfactory to both and indemnitysatisfactory to them shall be given, the Issuer, at the expense of the Holder, shall execute, and theBond Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and insubstitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured orshall be about to mature, instead of issuing a substitute Bond, the Bond Trustee may pay thesame Without surrender thereof). The Issuer may require payment by the Holder of a sum not
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exceeding the actual cost and expenses of preparing each new Bond issued under this Sectionand of the expenses that may be incurred by the Issuer and the Bond Trustee in the premises.Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost,destroyed or stolen shall constitute an original additional contractual obligation on the part of theIssuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any timeenforceable by anyone, and shall be entitled to the benefits of this Bond Indenture with all otherBonds secured by this Bond Indenture.
Section 2.09. Execution of 2013 Bonds; Limited Obligations, No Liability ofState. The 2013 Bonds Shall be executed by the Governor on behalf of the State and the Chair ofthe Issuer with their manual or facsimile signatures, and attested by the manual or facsimilesignature of the Secretary of State, and shall have impressed or imprinted thereon the Great Sealof the State. The 2013 Bonds shall then be delivered to the Bond Trustee for authentication by it.In case any of the officers who shall have signed or attested any of the 201 3 Bonds shall cease tobe such officer or officers before the 2013 Bonds so signed or attested shall have beenauthenticated or delivered by the Bond Trustee or issued by the Issuer, such 2013 Bonds maynevertheless be authenticated, delivered and issued and, upon such authentication, delivery andissue, shall be as binding upon the Issuer as though those who signed and attested the same hadcontinued to be such officers, and also any 2013 Bonds may be signed and attested by suchpersons as at the actual date of execution of such 2013 Bonds shall be the proper officer orofficers, although at the nominal date of such 2013 Bonds any such persons shall not have beensuch officer or officers.
Only such of the 2013 Bonds as shall bear thereon a certificate of authenticationsubstantially in the form set forth in Exhibit A with the manual or facsimile signature of theBond Trustee as authenticating agent, shall be valid or obligatory for any purpose or entitled tothe benefits of the Indenture, and such certificate of the Bond Trustee shall be conclusiveevidence that the 2013 Bonds so authenticated have been duly executed, authenticated anddelivered hereunder and are entitled to the benefits of this Bond Indenture.
The 2013 Bonds are special limited obligations of the Issuer. The 2013 Bonds andthe interest payable thereon and other costs incident thereto Will not constitute an indebtedness oran obligation, general or moral, or a pledge of the faith and credit of the State of West Virginiaor any political subdivision thereof within the purview of any constitutional or statutorylimitation and shall never constitute nor give rise to a charge against the general credit or taxingpower, if any, of any of them. No owner of the 2013 Bonds will have any right to compel anyexercise of the taxing power of the State of West Virginia, or any political subdivision of theState of West Virginia, to pay the principal of the 2013 Bonds, or the interest or premium, if any,thereon. Payment of the 2013 Bonds, including the principal thereof, redemption premium, ifany, and the interest thereon, will be made solely from the funds and obligations duly pledgedherein. There will be no pledge of any of the credit or the taxing power, if any, of the Issuer, theState of West Virginia, or any political subdivision of the State of West Virginia, to theobligations of the 2013 Bonds, and no owner of any of the 2013 Bonds can ever submit a claimagainst such credit or taxing power.
Section 2.10. Transfer of 2013 Bonds. Subject to the provisions of Section 2.07,any 2013 Bond may, in accordance with its terms, be transferred, upon the bond registration
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13
books required to be kept pursuant to the provisions of Section 2.12 by the Person in whosename it is registered, in person or by his duly authorized attorney, upon surrender of suchregistered Bond for cancellation, accompanied by delivery of a Written instrument of transfer,duly executed in a form approved by the Bond Trustee.
Whenever any 2013 Bond or 2013 Bonds shall be surrendered for transfer, theIssuer shall execute and the Bond Trustee shall authenticate and deliver a new 2013 Bond or2013 Bonds for a like aggregate principal amount of the same Series or Subseries, as applicable.The Bond Trustee shall require the Bondholder requesting such transfer to pay any tax or othergovernmental charge required to be paid with respect to such transfer.
Section 2.11. Exchange of 2013 Bonds. 2013 Bonds may be exchanged at thePrincipal Corporate Trust Office for a like aggregate principal amount of 2013 Bonds of thesame Series, or Subseries, as applicable of other Authorized Denominations. The Bond Trusteeshall require the Bondholder requesting such exchange to pay any cost, tax or othergovermnental charge required to be paid with respect to such exchange.
The Bond Trustee shall not be required to exchange any 2013 Bond during the 15days immediately preceding (1) the date on which notice of redemption is given or (2) the dateon which 2013 Bonds Will be selected for redemption.
Section 2.12. Bond Register. The Bond Trustee will keep or cause to be keptsufficient books for the registration and transfer of the 2013 Bonds, which shall at all times beopen to inspection during regular business hours by the Issuer; and, upon presentation for suchpurpose, the Bond Trustee shall, under such reasonable regulationsas it may prescribe, registeror transfer or cause to be registered or transferred, on such books, 2013 Bonds as hereinbeforeprovided.
Section 2.13. Temporary Bonds. The 2013 Bonds may be issued in temporaryform exchangeable for definitive 2013 Bonds when ready for delivery. Any temporary bondmay be printed, lithographed or typevvritten, shall be of such denomination as may be determinedby the Issuer, shall be in fully registered form Without coupons and may contain such referenceto any of the provisions of the Indenture as may be appropriate. Every temporary bond shall beexecuted by the Issuer and be authenticated by the Bond Trustee upon the same conditions and insubstantially the same manner as the definitive 2013 Bonds. If the Issuer issues temporary 2013Bonds, it will issue definitive 2013 Bonds as promptly thereafter as practicable, and thereuponthe temporary 2013 Bonds may be surrendered, for cancellation, in exchange therefor at thePrincipal Corporate Trust Office, and the Bond Trustee shall authenticate and deliver inexchange for such temporary 2013 Bonds an equal aggregate principal amount of definitive 2013Bonds of authorized denominations of the same Series. Until so exchanged, the temporary 2013Bonds shall be entitled to the same benefits under the Indenture as definitive 2013 Bondsauthenticated and delivered hereunder.
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ARTICLE III
ISSUANCE OF 2013 BONDS; APPLICATION OF PROCEEDS
Section 3.01. Delivery of the 2013 Bonds. At any time after the execution ofthis Second Supplemental Indenture, the Issuer shall execute, by physical or facsimile signature,and the Bond Trustee shall authenticate and, upon the request of the Issuer, deliver the 2013Bonds in the aggregate principal amount of such Series set forth in Section 2.01 hereof.
(1) A Certified copy of the Issuer Resolution;
(2) Copies of the authorizing resolution or resolutions of the HEPC,
(3) Copy of the consent and direction of the Governor to issue the 2013Bonds;
(4) An original executed counterpart of this Second Supplemental Indenture;
(5) A request and authorization to the Bond Trustee Signed by an AuthorizedRepresentative to authenticate the 2013 Bonds, to be originally issued, and todeliver them to the Original Purchasers therein identified upon payment of thesums specilied in such request for deposit in the funds and accounts as set forth inSection 3.02 hereof,
(6) An opinion of Bond Counsel substantially to the effect that the 2013Bonds constitute legal, valid and binding obligations of the Issuer, enforceable inaccordance with their terms, and that the interest on the 2013 Bonds is exoludablefrom the gross income of the Owners for purposes of federal income taxation, asapplicable;
(7) An Issuer's Certificate to the effect that the Issuer is not in default underthe Original Trust Indenture; and
(8) (1) A certificate of an Authorized Representative to the effect that thePledged Revenues for each of the preceding two Fiscal Years have equaled orexceeded 100% of Maximum Annual Debt Service on all Outstanding Bonds andthe 2013 Bonds to be issued, taking into effect the additional Debt ServiceCharges to be incurred following issuance thereof, or
(ii) A certificate from an Independent Certified Public Accountant to theeffect that the Pledged Revenues (A) have equaled or exceeded 1.00 times DebtService Charges for each of the preceding two Fiscal Years and (B) are projectedto equal or exceed 1.00 times Debt Service Charges for the Fiscal Yearimmediately following the date of issuance of the 2013 Bonds, taking into effectthe additional Debt Service Charges to be incurred following issuance thereof, the
Trustee:Prior to the delivery of any of the 2013 Bonds, there shall be filed with the Bond
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15
estimated average increased annual Gross Operating Revenues to be derived fromthe operation of the new facilities and/or improvements to existing facilities to befinanced by such 2013 Bonds, and new or increased Fees imposed or to beimposed by the Issuer prior to the issuance of the 2013 Bonds.
Section 3.02. Application of Proceeds of the 2013 Bonds. The moneys fromtime to time on deposit in the Funds and Accounts specified below (except for the Rebate Fund)are subject to a pledge in favor of the Holders of the 2013 Bonds until expended for the purposesfor which such Funds and Accounts are created.
The Proceeds in the amount of $6,739,065.98 (par amount of $6,730,000,less UnderWriter's discount of $35,013.32, and plus a net original issue premium of $44,079.30,received from the sale of the 2013 Bonds shall be deposited in trust with the Bond Trustee (the"2013 Bonds Closing Deposit").
The Bond Trustee shall allocate and deposit the amount of the 2013 BondsClosing Deposit as follows:
(A) Deposit any amounts representing interest accrued on the 2013Bonds to the credit of the Interest Fund and applied to the payment of the interest on the 2013Bonds.
(B) Deposit the sum of $104,299.98 in the 2013 Bonds Costs ofIssuance Fund established under Section 3.03 to be used as set forth in Section 3.03 hereof.
(C) Deposit $4,530,154.12 with WesBanco Bank, Inc., which shall beused, together with $356,319.21 to be transferred by the Bond Trustee from the existing BondFund and Debt Service Reserve Fund for the 2003 Bonds, to redeem the 2003 Bonds onDecember 2, 2013.
(D) Deposit $2,104,611.88 with WesBanco Bank, Inc., as EscrowTrustee under the 200413 Bonds Escrow Agreement which shall be used, together with$80,000.00 to be transferred by the Bond Trustee from the existing Bond Fund for the 200413Bonds, to defease the 200413 Bonds.
Section 3.03. Establishment and Application of 2013 Bonds Costs of IssuanceFund. The Bond Trustee shall establish, maintain and hold in trust a separate fund designated asthe "2013 Bonds Costs of Issuance Fund." The moneys in the 2013 Bonds Costs of IssuanceFund shall be used and Withdrawn by the Bond Trustee to pay the Costs of Issuance for the 2013Bonds upon Requisition of the Issuer stating the Person to Whom payment is to be made, theamount to be paid, the purpose for which the obligation was incurred and that such payment is aproper charge against said account. On February 28, 2014, or upon the earlier request of theIssuer, amounts, if any, remaining in the 2013 Bonds Costs of Issuance Fund shall be transferredto the Principal Fund and applied to the payment of the principal of the 2013 Bonds andthereafter the 2013 Bonds Costs of Issuance Fund shall be closed.
Section 3.04. Validity of 2013 Bonds. The recital contained in the 2013 Bondsthat the same are issued pursuant to the Act and the Constitution and laws of the State of West
16
5409373.5
Virginia shall be conclusive evidence of their validity and of compliance wida the provisions oflaw in their issuance.
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ARTICLE IV
REDEMPTION OF 2013 BONDS
Section 4.01. Terms of Redemption.
(A) Optional Redemption of 2013 Bonds. The 2013 Bonds maturing on andafter June 1, 2024 are subject to optional redemption prior to maturity, at the option of the Issuer,on and after June 1, 2023, in Whole or in part on any date (and if in part, the Issuer shall selectthe maturities of the 2013 Bonds of such Series to be redeemed and Within a maturity by lot orby such other method as the Bond Trustee determines to be fair and reasonable and inAuthorized Denominations) at the Redemption Price of par, together with accrued interest, ifany, to the redemption date.
(B) Mandatory Redemption Requirements.
The 2013 Bonds maturing on June 1, 2025, are also subject to redemption prior totheir stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in thePrincipal Fund pursuant to Section 5.03 of the Original Trust Indenture on June l of each of theyears set forth below, in the principal amounts set forth below, together with interest accruedthereon to the date fixed for redemption, Without premium.
Year Mandatory Sinking(June 1) Account Payment
2024 33 460,0002025* 240,000
*Final Maturity
The 2013 Bonds maturing on June 1, 2027, are also subject to redemption prior totheir stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in thePrincipal Fund pursuant to Section 5.03 of the Original Trust Indenture on June l of each of theyears set forth below, in the principal amounts set forth below, together with interest accruedthereon to the date fixed for redemption, Without premium.
Year Mandatory Sinking(June 1) Account Payment
2026 $ 245,0002027* 255,000
*Final Maturity
The 2013 Bonds maturing on June l, 2030, are also subject to redemption prior totheir stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in thePrincipal Fund pursuant to Section 5.03 of the Original Trust Indenture on June l of each of theyears set forth below, in the principal amounts set forth below, together with interest accruedthereon to the date iixed for redemption, Without premium.
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Year Mandatory Sinking(June 1) Account Payment
2028 33 265,0002029 275,0002030* 285,000
*Final Maturity
The 2013 Bonds maturing on June 1, 2033, are also subject to redemption prior to theirstated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in thePrincipal Fund pursuant to Section 5.03 of the Bond Indenture on June 1 of each of the years setforth below, in the principal amounts set forth below, together with interest accrued thereon tothe date fixed for redemption, Without premium.
Year Mandatory Sinking(June 1) Account Payment
2031 $ 295,0002032 310,0002033* 325,000
*Final Maturity
(C) The 2013 Bonds shall be subject to extraordinary optional redemptionprior to maturity by the Issuer, as a Whole or in part and in order of maturity selected by theIssuer, on any Business Day, at a Redemption Price equal to 100% of the principal amountthereof, plus accrued interest to the date fixed for redemption, in the event of condemnation,damage to or destruction of any project financed with proceeds of the Bonds to be Refunded orany portion of such projects, if the Issuer requests such redemption Within six months followingthe event and otherwise as set forth in the Indenture.
(D) In lieu of redeeming 2013 Bonds of any Series pursuant to this Section4.01, the Bond Trustee may, at the request of the Issuer, use such funds otherwise availablehereunder for redemption of 2013 Bonds to purchase 2013 Bonds in the open market at a pricenot exceeding the redemption price then applicable hereunder, such 2013 Bonds to be deliveredto the Bond Trustee for the purpose of cancellation. It is understood that in the case of any suchredemption or purchase of 2013 Bonds, the Issuer shall receive credit against its requiredMandatory Sinking Account Payment for the applicable series of such 2013 Bonds in the samemanner as would be applicable if such 2013 Bonds Were optionally redeemed.
Section 4.02. Selection of 2013 Bonds for Redemption. Subject to theprovisions of Section 2.07 hereof, Whenever provision is made in this Second SupplementalIndenture for the redemption of less than all of the 2013 Bonds or any given portion thereof,subject to Section 4.01 hereof, the Issuer shall select the maturities of the 2013 Bonds to beredeemed, in the Authorized Denominations specified in Section 2.02, and, Within the maturities,the Bond Trustee shall select the particular 2013 Bonds to be redeemed by lot or by such othermethod as the Bond Trustee determines to be fair and reasonable. The Bond Trustee shallpromptly notify the Issuer in Writing of any redemption of the 2013 Bonds or portions thereof soselected for redemption. The selection of 2013 Bonds shall be at such time as determined by the
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Bond Trustee. The foregoing notwithstanding, the Issuer, in its sole discretion, may select the2013 Bonds to be redeemed.
Section 4.03. Notice of Redemption. Notice of redemption shall be mailed byfirst-class mail by the Bond Trustee, not less than 15 nor more than 60 days prior to the dateHXed for redemption, to the Rating Agencies then rating the 2013 Bonds and the respectiveHolders of any 2013 Bonds designated for redemption at their addresses appearing on the bondregistration books of the Bond Trustee. Each notice of redemption shall state the date of suchnotice, the date of delivery, the date fixed for redemption, the Redemption Price, the place orplaces of redemption (including the name and appropriate address or addresses of the BondTrustee), the CUSIP number (if any) of the 2013 Bonds to be redeemed and, in the case of 2013Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed.Each such notice shall also state that on said date there will become due and payable on each ofsaid 2013 Bonds the Redemption Price thereof or of said specified portion of the principalamount thereof in the case of a 2013 Bond to be redeemed in part only, together With interestaccrued thereon to the date fixed for redemption, and that from and after such date, interest onsuch 2013 Bond shall cease to accrue, and shall require that such 2013 Bonds be thensurrendered at the address or addresses of the Bond Trustee specified in the redemption notice.
Notice of redemption of 2013 Bonds shall be given by the Bond Trustee, at theexpense of the Issuer.
Failure by the Bond Trustee to mail notice of redemption pursuant to thisSection 4.03 to the Rating Agencies then rating the 2013 Bonds or to any one or more of theHolders of any 2013 Bonds designated for redemption shall not affect the sufficiency of theproceedings for redemption with respect to the Holders to Whom such notice was mailed.
With respect to notice of any optional redemption of the 2013 Bonds, unlessmoneys sufficient to pay the redemption price of the 2013 Bonds to be redeemed shall have beenreceived by the Bond Trustee prior to thegiving of that notice, the notice shall explicitly statethat the redemption shall be conditional upon the receipt of such moneys by the Bond Trustee onor prior to the date fixed for the redemption and the satisfaction of other conditions required inthe Indenture. If such moneys shall not have been so received, the notice shall be of no force andeffect, the 2013 Bonds shall not be redeemed pursuant thereto and the Bond Trustee shall givenotice, in the maimer in Which notice of redemption was given, that such moneys were notreceived.
Any notice given pursuant to this Section 4.03 may be rescinded by Written noticegiven to the Bond Trustee by the Issuer no later than five (5) Business Days prior to the datespecified for redemption. The Bond Trustee shall give notice of such rescission, as soonthereafter as practicable, in the same manner, to the same persons, as notice of such redemptionwas given pursuant to this Section 4.03.
Section 4.04. Partial Redemption of 2013 Bonds. Subject to the provisions ofSection 2.07 hereof, upon surrender of any 2013 Bond to be redeemed in part only, the BondTrustee shall authenticate and deliver to the Holder thereof, at the expense of the Issuer, a new
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2013 Bond or 2013 Bonds of Authorized Denominations of the same Series, equal in aggregateprincipal amount to the unredeerned portion of the Bond surrendered.
Section 4.05. Effect of Redemption. Notice of redemption having been dulygiven as aforesaid, and moneys for payment of the Redemption Price of, together with interestaccrued to the date fixed for redemption on, the 2013 Bonds (or portions thereof) so called forredemption being held by the Bond Trustee, on the date fixed for redemption designated in suchnotice, the 2013 Bonds (or portions thereof) so called for redemption shall become due andpayable at the Redemption Price specified in such notice to the date fixed for redemption,interest on the 2013 Bonds so called for redemption shall cease to accrue, said 2013 Bonds (orportions thereof) shall cease to be entitled to any benefit or security under this Bond Indenture,and the Holders of said 2013 Bonds shall have no rights in respect thereof except to receivepayment of said Redemption Price.
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ARTICLE V
PARTICULAR COVENANTS
Section 5.01. Continuing Disclosure. The Issuer has oovenanted to comply withand carry out all of the provisions of the Continuing Disclosure Agreement with respect to the2013 Bonds that complies with the provisions of Rule l5c2-12 promulgated by the Securities andExchange Commission (as amended from time to time, the "Rule"), in form and substancesatisfactory to the Participating Underwriters (as defined in the Rule). Notwithstanding anyother provision of the Indenture, failure of the Issuer to enter into and comply with suchContinuing Disclosure Agreement shall not be considered an Event of Default.
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Section 5 .02. rRESERVED1.
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ARTICLE VI
MISCELLANEOUS
Section 6.01. Acts of Officers. The officers and agents of the Issuer shall do allacts and things required of them by this Second Supplemental Indenture, the Original TrustIndenture, the First Supplemental Indenture and the 2013 Bonds for the complete and punctualperformance of all covenants and agreements contained herein and therein.
Section 6.02. Confirmation of Indenture. As hereby supplemented andamended, the Indenture is in all respects ratified and confirmed, and the Indenture, includingeach supplemental indenture, shall be read, taken and construed as one and the same instrument.All covenants, agreements and provisions of, and all security provided under, the Indenture shallapply with full force and effect to the Bonds and to the owners thereof. The Issuer herebyconfirms all its representations made under the Indenture as if made on the date of this SecondSupplemental Indenture.
Section 6.03. Severability. If any provision of this Second SupplementalIndenture shall be held invalid by any court of competent jurisdiction, such holding shall notinvalidate any other provision hereof.
Section 6.04. Applicable Law. This Second Supplemental Indenture shall begoverned by the applicable laws of the State of West Virginia.
Section 6.05. Counterparts. This Second Supplemental Indenture may beexecuted in several counterparts, each of which shall be an original and all of which togethershall constitute but one and the same instrument.
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w
IN WITNESS WHEREOF, THE SHEPHERD UNIVERSITY BOARD OFGOVERNORS has caused these presents to be signed by its Chair and attested to by itsSecretary, and, to evidence its acceptance of the trusts hereby created, WesBanco Bank, Inc., intoken of its acceptance of the trusts created hereunder, has caused these presents to be signed inits name and behalf by one of its authorized officers, all as of the day and year first and aboveWritten.
THE SHEPHERD UNIVERSITYBOARD UF GOMERNORS
By:iair
Attest:
By: M . '\\ \ \`Its: /(¥\\h\~ O-\<~<=>\°\ "\§
SecretaryWESBANCO BANK, INC., s Bond Trustee
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54093735
EXHIBIT A
FORM OF 2013 BONDS
[See Transcript Document No. 10]