LIGHTHOUSE LIFE CAPITAL, LLC a Delaware limited liability company Issuer AND UMB Bank Trustee INDENTURE Dated as of ___________, 2020 Debt Securities
a Delaware limited liability company
Issuer
AND
UMB Bank
Trustee
INDENTURE
Dated as of ___________, 2020
Debt Securities
TABLE OF CONTENTS(2)
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
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Section 1.01
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Definitions of Terms
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5
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Section 1.02
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Rules of Construction.
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9
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Section 1.03
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Form of Documents Delivered to Trustee
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9
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ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
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10
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Section 2.01
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Form of Bonds and Trustee's Certificate.
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10
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Section 2.02
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Denominations: Provisions for Payment.
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10
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Section 2.03
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Execution and Authentication.
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12
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Section 2.04
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Registration of Transfer and Exchange.
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12
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Section 2.05
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[Intentionally deleted]
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13
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Section 2.06
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Mutilated, Destroyed, Lost or Stolen Bonds.
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13
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Section 2.07
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Cancellation.
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13
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Section 2.08
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Benefits of Indenture.
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13
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Section 2.09
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Authenticating Agent.
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14
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Section 2.10
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Global Form of Bonds
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14
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ARTICLE III REDEMPTION OF SECURITIES
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14
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Section 3.01
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Redemption.
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14
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Section 3.02
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Notice of Redemption.
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15
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Section 3.03
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Payment Upon Redemption.
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15
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ARTICLE IV COVENANTS
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15
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Section 4.01
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Payment of Principal, Premium and Interest.
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15
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Section 4.02
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Maintenance of Office or Agency.
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16
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Section 4.03
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Paying Agents.
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16
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee.
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17
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Section 4.05
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Compliance with Consolidation Provisions.
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17
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Section 4.06
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Statement by Officers as to Default.
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17
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Section 4.07
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Limitations on Issuance of Equity Interests.
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17
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Section 4.08
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Bond Service Reserve.
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17
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Section 4.09
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Additional Indebtedness.
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17
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Section 4.10
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Liens.
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17
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ARTICLE V SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
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18
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Section 5.01
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Company to Furnish Trustee Names and Addresses of
Bondholders.
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18
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Section 5.02
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Preservation of Information; Communications With
Bondholders.
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18
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Section 5.03
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Reports by the Company.
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18
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
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19
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Section 6.01
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Event of Default.
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19
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by
Trustee.
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20
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Section 6.03
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Application of Moneys Collected.
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21
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Section 6.04
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Limitation on Suits.
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21
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
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22
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Section 6.06
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Control by Bondholders.
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22
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Section 6.07
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Undertaking to Pay Costs.
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22
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ARTICLE VII CONCERNING THE TRUSTEE
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23
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Section 7.01
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Certain Duties and Responsibilities of Trustee.
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23
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Section 7.02
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Notice of Defaults.
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23
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Section 7.03
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Certain Rights of Trustee.
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23
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Section 7.04
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Trustee Not Responsible for Recitals or Issuance or
Bonds.
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24
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Section 7.05
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May Hold Bonds.
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25
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Section 7.06
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Moneys Held in Trust.
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25
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Section 7.07
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Compensation and Reimbursement.
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25
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Section 7.08
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Reliance on Officer's Certificate.
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25
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Section 7.09
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Disqualification; Conflicting Interests.
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26
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Section 7.10
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Corporate Trustee Requires; Eligibility.
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26
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Section 7.11
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Resignation and Removal; Appointment of Successor.
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26
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Section 7.12
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Acceptance of Appointment By Successor.
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27
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Section 7.13
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Merger, Conversion, Consolidation or Succession to
Business.
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27
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ARTICLE VIII CONCERNING THE BONDHOLDERS
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27
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Section 8.01
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Evidence of Action by Bondholders.
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27
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Section 8.02
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Proof of Execution by Bondholders.
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28
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Section 8.03
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Who May be Deemed Owners.
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28
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Section 8.04
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Certain Bonds Owned by Company Disregarded.
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28
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Section 8.05
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Actions Binding on Future Bondholders.
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28
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ARTICLE IX SUPPLEMENTAL INDENTURES
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29
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Section 9.01
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Supplemental Indentures Without the Consent of
Bondholders.
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29
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Section 9.02
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Supplemental Indentures With Consent of Bondholders.
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30
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Section 9.03
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Effect of Supplemental Indentures.
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30
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Section 9.04
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Bonds Affected by Supplemental Indentures.
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30
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Section 9.05
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Execution of Supplemental Indentures.
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30
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ARTICLE X SUCCESSOR ENTITY
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31
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Section 10.01
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Company May Not Consolidate, Etc.
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31
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ARTICLE XI SATISFACTION AND DISCHARGE
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31
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Section 11.01
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Satisfaction and Discharge.
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31
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Section 11.02
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Deposited Moneys to be Held in Trust.
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32
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Section 11.03
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Payment of Moneys Held by Paying Agents.
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32
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Section 11.04
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Repayment of Company.
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32
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Section 11.05
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Reinstatement.
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32
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ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
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32
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Section 12.01
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No Recourse.
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32
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ARTICLE XIII MISCELLANEOUS PROVISIONS
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33
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Section 13.01
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Effect on Successors and Assigns.
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33
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Section 13.02
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Actions by Successor.
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33
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Section 13.03
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Surrender of Company Powers.
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33
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Section 13.04
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Notices.
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33
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Section 13.05
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Governing Law.
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33
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Section 13.06
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Treatment of Bonds as Debt.
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33
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Section 13.07
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Compliance Certificates and Opinions
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33
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Section 13.08
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Payments on Business Days
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34
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Section 13.09
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Counterparts.
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34
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Section 13.10
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Separability.
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34
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Section 13.11
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Electronic Storage
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34
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Form of Class A Bond
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Exhibit
A
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Form of Class B Bond
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Exhibit
B
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_____________________
(2) This Table of Contents
does not constitute part of the Indenture and shall not have any
bearing on the interpretation of any of its terms or
provisions.
INDENTURE
INDENTURE, dated as of, between LIGHTHOUSE LIFE CAPITAL,
LLC, a Delaware limited liability company (the "Company" or the
“Issuer”), and UMB Bank, as trustee (the
"Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debt securities (hereinafter
referred to as the "Bonds"), in a maximum aggregate principal
amount of Fifty Million Dollars ($50,000,000.00) to be issued as
registered Bonds, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which
the Bonds are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW,
THEREFORE, in consideration of
the premises and the purchase of the Bonds by the holders thereof,
it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Bonds.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular.
All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference
in said Trust Indenture Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of the execution of this
instrument.
"Affiliate" as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct
or indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities, by contract or
otherwise.
“Applicable Governmental
Agency” means any of: (1)
the Social Security Administration; (2) the U.S. Office of
Personnel Management; or (3) the Veteran’s Benefits
Administration.
"Authenticating
Agent" means an authenticating
agent with respect to the Bonds appointed by the Trustee pursuant
to Section 2.09.
"Bankruptcy
Law" means Title 11, U.S. Code,
or any similar federal or state law for the relief of
debtors.
"Bonds" means the bonds authenticated and delivered
under this Indenture.
"Bondholder", "holder of Bonds", "registered
holder", or other similar term,
means the Person or Persons in whose name or names a particular
Bond shall be registered on the books of the Company kept for that
purpose in accordance with the terms of this
Indenture.
"Bond
Register" has the meaning given
in Section 2.04.
"Bond
Registrar" has the meaning
given in Section 2.04.
5
"Bond Service
Obligation" means the
amount payable by the Company in principal and interest due on the
Bonds each Interest Accrual Period.
"Business Day" means any day other than a day on which Federal
or State banking institutions in the City of Conshohocken,
Pennsylvania, are authorized or obligated by law, executive order
or regulation to close.
“Capital
Stock” means: (1)
in the case of a corporation,
corporate stock; (2) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock; (3) in
the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person but excluding from all of the
foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of
participation with Capital Stock.
"Cash and Cash
Equivalents" shall have the
meaning prescribed by GAAP
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company. The Certificate need not comply
with the provisions of Section 13.07.
"Change of Control Repurchase
Event", means (A) the
acquisition by any person who is not an Affiliate of the Issuer or
the Sole Member, including any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, of
beneficial ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of purchases,
mergers or other acquisition transactions of the membership units
entitling that person to exercise more than 50% of the total voting
power of all the membership units entitled to vote in meetings of
the Company (except that such person will be deemed to have
beneficial ownership of all securities that such person has the
right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition);
and (B) following the closing of any transaction referred to
in subsection (A), neither we nor the acquiring or surviving entity
has a class of common securities (or American Depositary Receipts
representing such securities) listed on the New York Stock Exchange
(“NYSE”), the NYSE American, or the Nasdaq Stock
Market, or listed or quoted on an exchange or quotation system that
is a successor to the NYSE, the NYSE American or the Nasdaq Stock
Market.
“Class A
Bonds” are a class of
Securities authorized for issuance under this Indenture, the form
of which is attached to the Indenture as Exhibit
A.
“Class B
Bonds” are a class of
Securities authorized for issuance under this Indenture, the form
of which is attached to the Indenture as Exhibit
B.
"Company" means Lighthouse Life Capital, LLC, a limited
liability company duly organized and existing under the laws of the
State of Delaware, and, subject to the provisions of Article X,
shall also include its successors and assigns.
“Company
Assets” means, with
respect to the Company, all assets and interests in assets of the
Company, whether real, personal or mixed, whether directly owned or
indirectly owned, including without limitation interests owned in
Subsidiaries, whether now owned or existing or hereafter acquire or
arising and wheresoever located.
"Corporate Trust
Office" means the principal
office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is
located at 000 Xxxxx Xxxx, 00xx
Xxxxx, Xxxxxx Xxxx, XX 00000,
Attention: Xxxx Xxxxxxx, or such other address as the Trustee may
designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the
Company).
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy
Law.
"Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulted
Interest" has the meaning given
in Section 2.02.
6
"Depositary" means, with respect to the Bonds, DTC, Cede
& Co. or Phoenix American Financial Services, Inc., as the case
may be, and any and all successors thereto appointed as Depositary
hereunder and having become such pursuant to the applicable
provision of this Indenture.
"DTC" means The Depository Trust
Company.
“Equity
Interest” means Capital
Stock and all warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
"Event of
Default" means any event
specified in Section 6.01, continued for the period of time, if
any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes
thereto.
"Governmental
Obligations" means securities
that are (i) direct obligations (other than obligations subject to
variation in principal repayment) of the United States of America
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in
either case, are not callable or redeemable prior to maturity at
the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as custodian with
respect to any such Governmental Obligation or a specific payment
of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such
depositary receipt; provided,
however, that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or
interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into in accordance with
the terms hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust
Indenture Act that are specifically referenced and incorporated
herein or in any such supplemental indenture,
respectively.
“Initial Interest Payment
Date” means the initial
date for payment of interest as set forth in the applicable
Bond.
“Interest Accrual
Period” means
the period beginning on any Interest Payment Date and continuing up
to but not including the next Interest Payment Date, or if interest
has not been paid, from the date of issuance up to but not
including the Initial Interest Payment Date.
"Interest Payment
Date", means any Initial
Interest Payment Date and the fifteenth (15th)
day of any subsequent month until the Bonds have been repaid in
full or are otherwise no longer outstanding.
“Lien”,
means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code, or equivalent statutes, of any
jurisdiction).
“Maturity
Date” means, with respect
to any Bond, the date on which the principal of such Bond becomes
due and payable as therein provided.
“Maturity Record
Date” means, with respect
to any Bond, as of the close of business on the first Business Day
that is at least 31 days prior to the Maturity Date or redemption
date applicable to such Bond.
“Notice of
Maturity” means a notice
from the Company to a Bondholder that the Bondholder’s Bonds
will be maturing on the related Maturity Date.
7
"Opinion of
Counsel" means an opinion in
writing of legal counsel, who may be an employee of or counsel for
the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the
provisions thereof.
"Outstanding" means, subject to the provisions of Section 8.04, as of
any particular time, all Bonds theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Bonds
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Bonds or portions thereof
for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been irrevocably set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided,
however, that if such Bonds or
portions of such Bonds are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article III or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Bonds in lieu of or in
substitution for which other Bonds shall have been authenticated
and delivered pursuant to the terms of Section
2.06.
"Person" means any individual, corporation, limited
liability company, partnership, joint-venture, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor
Bond" of any particular Bond
means every previous Bond evidencing all or a portion of the same
debt as that evidenced by such particular Bond; and, for the
purposes of this definition, any Bond authenticated and delivered
under Section 2.06 in lieu of a lost, destroyed or stolen Bond
shall be deemed to evidence the same debt as the lost, destroyed or
stolen Bond.
"Property" means any interest in any kind of property or
asset, whether, real, personal or mixed, whether tangible or
intangible, owned or acquired by the Company or any Subsidiary of
the Company.
“Qualifying
Disability” means, with
respect to any Bondholder or beneficial holder, a determination of
disability based upon a physical or mental condition or impairment
arising after the date such Bondholder or beneficial holder first
acquired Bonds. Any such determination of disability must be made
by the Applicable Governmental Agency responsible for reviewing the
disability retirement benefits that the applicable Bondholder or
beneficial holder could be eligible to receive.
“Record
Date” means, with respect
to an Interest Payment Date shall mean the first day of the month
in which an Interest Payment Date shall occur, whether or not such
date is a Business Day.
“Redemption
Period” shall be a period
of three (3) calendar months, with Redemption Periods beginning on
January 1st,
April 1st,
July 1st
and October 1st
of each calendar
year.
“Repayment
Election” means a written
notice from a Bondholder to the Company stating that repayment of
the Bondholder’s Bonds is required in connection with the
maturity of such Bonds.
"Responsible
Officer" when used with respect
to the Trustee means the Chairman of the Board of Directors, the
President, any Vice President, the Secretary, the Treasurer, any
trust officer, any corporate trust officer or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with
the particular subject.
"SEC" means the U.S. Securities and Exchange
Commission.
"Sole
Member" means the Sole
Member of the Company as may be designated from time to time in
accordance with the Company's operating agreement. As of the date
hereof, the Sole Member is LHL Strategies, Inc., a Delaware
corporation and sole member of the Company.
"Sole Member’s
Certificate" means a
certificate signed by the Sole Member of the Company that is
delivered to the Trustee in accordance with the terms hereof. Each
such certificate shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions
thereof.
8
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, (ii) any general partnership, limited
liability company, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner.
"Trustee" means UMB Bank, and, subject to the provisions
of Article VII, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such
Person.
"Voting Stock", as applied to stock of any Person, means
shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
Section 1.02 Rules of Construction
For
all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(2)
all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not
otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the
United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted in the
United States of America at the date of such
computation;
(4)
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;
(5)
the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not
both");
(6)
the masculine gender includes the feminine and the neuter;
and
(7)
references to agreements and other instruments include subsequent
amendments and supplements thereto.
Section 1.03 Form of Documents Delivered to Trustee.
In
any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several
documents.
Any
certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon
which his certificate or opinion is based is erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company, a governmental official or
officers or any other Person or Persons, stating that the
information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate,
opinion or representations with respect to such matters are
erroneous.
Where
any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture or any Bond,
they may, but need not, be consolidated and form one
instrument.
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ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND
EXCHANGE OF SECURITIES
Section 2.01 Form of Bonds and Trustee's Certificate.
The Bonds and the Trustee's certificate of
authentication shall be substantially in the form
of Exhibit A
and Exhibit
B hereto. The Bonds may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange on which the Bonds may be listed, or to conform to usage.
The terms and conditions contained in the Bonds shall constitute,
and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuer and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent
any provision of any Bond conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and
be controlling.
Bonds
shall be issued from time to time upon receipt by the Trustee of a
written order of the Company stating the terms and conditions of
the Bonds and principal amount of Bonds to be issued and that it
has delivered to the Trustee the items required by Section 2.03.
All Bonds issued under this Indenture shall rank pari passu. For
Bonds issued, at the request of the Trustee, the Company shall
deliver prior to issuance of such Bonds a Form W-9 for each
registered holder of such Bonds and any other information required
by law or as reasonable requested by the Registrar to maintain the
Bond Register and make the payments to the registered holders. The
Trustee, Paying Agent and Registrar may conclusively rely upon such
information provided by the Company.
Section 2.02 Denominations; Provisions for Payment;
Maturity.
(a) The Bonds shall be issuable as registered Bonds
and in the denominations of One Thousand U.S. dollars ($1,000) or
any integral multiple thereof. The Bonds will be offered serially
in two classes, Class A and Class B, with the sole difference
between the series being their respective maturity dates, over a
2-year period starting from the date of qualification of the
Regulation A Offering Statement on Form 1-A filed on __________,
2020 (File No. ________). Each series of Bonds beginning with
Series A-1 for Class A Bonds and Series B-1 for Class B Bonds will
correspond to a particular closing for the applicable class of
Bonds. Each series of Class A Bonds will mature on the fifth
anniversary of the issuance date of the applicable series of Bonds
and will bear interest at a fixed rate of eight and one-half
percent (8.5%) per annum payable on an Interest Payment Date. Each
series of Class B Bonds will mature on the third anniversary of the
initial issuance date of Bonds in such series and will bear
interest at a fixed rate of six and one-half percent (6.5%) per
annum payable on an Interest Payment Date. Interest payable shall
be calculated using the Interest Accrual Period immediately
preceding such Interest Payment Date, if applicable. Interest on
the Bonds will be paid monthly on the fifteenth
(15th)
day of each calendar month and the first interest payment on a Bond
will be paid on the fifteenth (15th)
day of the calendar month following the issuance of such
Bond.
The principal of and the interest on the Bonds, as
well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America that at the time is legal tender for public and
private debt, at the Corporate Trust Office or agency of the
Trustee; provided,
however, that at the option of
the Company and with prior written notice to the Trustee thereof,
payment of interest, may be made by check mailed by the Company
directly to the address of the Person entitled thereto as such
address shall appear in the Bond Register instead of first being
deposited with the Trustee. In such case, the Trustee shall be
entitled to rely conclusively upon the records of the Company in
determining the amount of Bonds Outstanding. Each Bond shall be
dated the date of its authentication by the Trustee. Interest on
the Bonds shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The interest installment on any
Bond that is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose
name said Xxxx (or one or more Predecessor Bonds) is registered at
the close of business on the Record Date for such interest
installment. In the event that any Bond is called for redemption
and the redemption date is subsequent to a Record Date with respect
to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Bond will be paid upon presentation and
surrender of such Bond as provided in Section
3.03. Notwithstanding any other provisions of this Section
2.02, payment of principal of and any interest on the
Bonds shall be made to a Depositary or its nominee, as the
case may be, as the sole registered owner and holder of the
Bonds for all purposes under this
Indenture.
(b) Any
interest on any Bond that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2)
below:
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(1)
The Company may make payment of any Defaulted Interest on Bonds to
the Persons in whose names such Bonds (or their respective
Predecessor Bonds) are registered at the close of business on a
special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Bond and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Bondholder at his or
her address as it appears in the Bond Register (as hereinafter
defined), not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Bonds (or their respective Predecessor Bonds) are registered on
such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Bonds
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Bonds may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee. Subject to the foregoing provisions of
this Section, each Bond delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Bond shall
carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Bond.
(c) No
more than 240 days and no less than 180 days prior to a Maturity
Date for any Bond, the Company will send to the Trustee and each
holder of such a Bond as of its Maturity Record Date a Notice of
Maturity (via first class U.S. mail, facsimile or electronic
transmission). The Notice of Maturity will notify the holder of the
Bond’s pending maturity and that the automatic renewal
provision described in subsection (d) will take effect,
unless:
(1) the
Company states in the Notice of Maturity that it will not allow the
holder to renew the Bond, in which case the Company shall pay the
holder all outstanding principal, accrued but unpaid interest and
any other amounts owed under the terms of such Bond on the Maturity
Date, subject to the Company’s ability to extend the Maturity
Date for an additional six months in its sole and absolute
discretion by providing written notice of such extension after
the Repayment Election and at least 60 days prior to the Maturity
Date; or
(2) the
holder sends to the Company, at least 150 days prior to the
Maturity Date, a Repayment Election for the payment of all
outstanding principal and accrued but unpaid interest due on the
Security as of the Maturity Date; provided, however, that the
holder of a global note may elect to receive payment of outstanding
principal, accrued but unpaid interest and any other amounts owed
under the terms of such Bond respecting less than all principal
represented by such global note.
If a Notice of Maturity permits the holder to
renew the Bond, then the Company shall also include the
then-current applicable offering statement or prospectus, if any,
together with a statement urging the holder to review such
documentation prior to any renewal. Upon receipt of a Notice of
Maturity, the holder of a maturing Bond may in its discretion send
to the Company a Repayment Election; provided that such Repayment
Election must be sent to the Company no later than 150 days prior
to the Maturity Date. If the Company receives a Repayment Election
on or prior to the 150th day before the Maturity Date, the Company
will provide such Repayment Election to the Trustee and shall pay
all outstanding principal, accrued but unpaid interest and any
other amounts owed under the terms of such Bond (through the
Maturity Date) no later than Maturity Date, subject to the
Company’s ability to extend the maturity date for an
additional six months in its sole and absolute discretion by
providing written notice of such extension after the Repayment
Election and at least 60 days prior to the Maturity Date; provided
that if the Company shall have previously paid interest to the
holder for any period after the Maturity Date, then such interest shall
be deducted from such payment.
(d) If a Holder of a maturing Security has
not delivered a Repayment Election for repayment of the Bond on or
prior to the 150th day before the Maturity Date, and the
Company did not notify the holder of its intention to repay the
Bond in the Notice of Maturity, then such maturing Bond shall be
extended automatically for an additional six months and shall be
deemed to be renewed by the holder and the Company as of the
Maturity Date of such maturing Bond. A maturing Xxxx will
thereafter continue to renew as described herein absent a
subsequent Redemption Notice by the Company, a Repurchase Request
by the Bondholder, or an indication by the Company that it will
repay and not allow the Bond to be renewed in any subsequent Notice
of Maturity. Interest on the renewed Bond shall accrue from the
Maturity Date of the maturing Bond. Such renewed Bond will be
deemed to have the identical terms and provisions of the maturing
Bond, including provisions relating to payment.
(e) The
above Sections 2.02(c) and 2.02(d) shall govern redemption or
maturity of Bonds at maturity notwithstanding anything contained to
the contrary in Article III of this Indenture.
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Section 2.03 Execution and Authentication.
The
Bonds shall be signed on behalf of the Company by its Sole Member
under its seal attested by a notary public. Signatures may be in
the form of a manual or facsimile signature. The Company may use
the facsimile signature of any Person who shall have been a Sole
Member, notwithstanding the fact that at the time the Bonds shall
be authenticated and delivered or disposed of such Person shall
have ceased to be the Sole Member of the Company. The seal of the
Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Bonds.
The Bonds may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. A Bond shall not be
valid until authenticated manually by an authorized signatory of
the Trustee, or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Bond so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture. At any time and from
time to time after the execution and delivery of this Indenture,
the Company may deliver Bonds executed by the Company to the
Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Bonds, signed
by its Sole Member, and the Trustee in accordance with such written
order shall authenticate and deliver such Bonds.
Prior
to the initial issuance of the Bonds, in authenticating such Bonds
and accepting the additional responsibilities under this Indenture
in relation to such Bonds, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that (1) the Company is
permitted by law to enter into this Indenture, (2) the form and
terms of the Bonds have been established in conformity with the
provisions of this Indenture, the Regulation A Offering Statement
on Form 1-A filed on _________, 2020 (File No. _________), all SEC
requirements, and other applicable laws and regulations, and (3)
that such Bonds, when authenticated and delivered by the Trustee
and issued by the Company will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject to any Bankruptcy Law or other insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforcement
is sought in a proceeding in equity or at law); and a Sole
Member's Certificate stating that all conditions precedent provided
for in this Indenture relating to the issuance of the Bonds have
been complied with and that, to the best of the knowledge of the
signers of such Sole Member's Certificate, no Event of Default with
respect to any of the Bonds shall have occurred and be continuing.
Additionally, prior to the issuance of any Bonds after the initial
issuance, the Company shall deliver to the Trustee a Sole Member's
Certificate stating that all conditions precedent provided for in
this Indenture relating to the issuance of the Bonds have been
complied with and that, to the best of the knowledge of the signers
of such Sole Member's Certificate, no Event of Default with respect
to any of the Bonds shall have occurred and be continuing. The
Trustee may conclusively rely upon the Opinion of Counsel and Sole
Member's Certificate in authenticating the Bonds and accepting the
responsibility under this Indenture. The Trustee shall not be
required to authenticate such Bonds if the issue of such Bonds
pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Bonds and this Indenture or
otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.04 Registration of Transfer and Exchange.
(a)
Bonds may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the City of
Conshohocken, Pennsylvania, or such other location designated by
the Company, for other Bonds of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Bonds so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Bond or Bonds that the Bondholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the City of Conshohocken,
Pennsylvania, or such other location designated by the Company, a
register or registers (herein referred to as the "Bond Register")
in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Bonds and the transfers
of Bonds as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Bonds and transfer of Bonds as
herein provided shall be appointed as authorized by the Company
(the "Bond Registrar"). The initial Bond Registrar shall be UMB
Bank. Upon surrender for transfer of any Bond with the Bond
Registrar, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of
the transferee or transferees a new Bond as the Bond presented for
a like aggregate principal amount. All Bonds presented or
surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the
Company or the Bond Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company and
the Bond Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c)
No service charge shall be made for any exchange or registration of
transfer of Bonds, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.04,
Section 3.03(b) and Section 9.04 not involving any transfer. The
Company shall not be required (i) to issue, exchange or register
the transfer of any Bonds during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Bonds and ending at the
close of business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Bonds called for
redemption.
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(d) The
transfer and exchange of beneficial interests in the Bonds will be
effected through the respective Depositary, in accordance with the
provisions of this Indenture.
If
applicable, upon notification from the Depositary, the Trustee
shall adjust the principal amount of the relevant Bond(s) pursuant
to Section 2.04(e) in accordance with the procedures of the
Depositary.
(e) At
any time prior to cancellation of a Bond, if any beneficial
interest in such a Bond is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest
in another Bond issued under this Indenture, the principal amount
represented by such Xxxx will be reduced accordingly in accordance
with the procedures of the Depositary; and if the beneficial
interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in
another Bond issued under this Indenture, such other Bond will be
increased accordingly in accordance with the procedures of the
Depositary.
Section 2.05 [Intentionally deleted]
Section 2.06 Mutilated, Destroyed, Lost or Stolen
Bonds.
In
case any Bond shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company's request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Bond bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Bond, or in lieu of and in
substitution for the Bond so destroyed, lost or stolen. In every
case the applicant for a substituted Bond shall furnish to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Bond and of the
ownership thereof. The Trustee may authenticate any such
substituted Bond and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of
any substituted Bond, the Company 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
the fees and expenses of the Trustee) connected therewith. In case
any Bond that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Bond, 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
Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee
of the destruction, loss or theft of such Bond and of the ownership
thereof. Every replacement Bond issued pursuant to the provisions
of this Section shall constitute an additional contractual
obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Bond shall be found at any time, or be enforceable
by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Bonds
duly issued hereunder. All Bonds shall be held and owned upon the
express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Bonds, and shall preclude (to the extent lawful) any and
all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.07 Cancellation.
All
Bonds surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or
any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no
Bonds shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. The
Trustee may dispose of canceled Bonds in accordance with its
standard procedures and deliver a certificate of disposition to the
Company. If the Company shall otherwise acquire any of the Bonds,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Bonds unless
and until the same are delivered to the Trustee for
cancellation.
Section 2.08 Benefits of Indenture.
Nothing
in this Indenture or in the Bonds, express or implied, shall give
or be construed to give to any Person, other than the parties
hereto and the holders of the Bonds any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Bonds.
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Section 2.09 Authenticating Agent.
So
long as any of the Bonds remain Outstanding there may be an
Authenticating Agent for any or all Bonds which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Bonds
issued upon exchange, transfer or partial redemption thereof, and
Bonds so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately. Any Authenticating
Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the
agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Any
corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating
Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating
Agent.
Section 2.10 Global Form of Bonds
The
Company shall issue the Bonds in global form. The Company may issue
a Bond only to a Depositary. A Depositary may transfer a Bond only
to its nominee or to a successor Depositary. A Bond shall represent
the amount of the securities specified therein. A Bond may have
variations that the Depositary requires or that the Company
considers appropriate for such a security.
Prior
to due presentment of the Bond(s) for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name such Bond(s) is registered as
the owner of such Bonds for the purpose of receiving payment of
principal of and interest on such Bond(s) and for all other
purposes whatsoever, whether or not such Bond(s) be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the
contrary.
Beneficial
owners of part or all of a Bond are subject to the rules of the
Depositary as in effect from time to time. The Company, the Trustee
and any agent of the Company or Trustee shall not be responsible
for any acts or omissions of a Depositary, for any Depositary
records of beneficial ownership interests or for any transactions
between the Depositary and beneficial owners.
ARTICLE III
REDEMPTION OF SECURITIES
Section 3.01 Redemption
The
Bonds may be redeemed, in whole or from time to time in part,
subject to the conditions set forth in this Article III or in the
applicable Bond. If the Company elects to redeem Bonds pursuant to
this Article III, it shall notify the Trustee in writing of the
redemption date, the redemption price and the principal amount of
Bonds to be redeemed. The Company shall give notice of redemption
to the Trustee not less than thirty (30) days before the redemption
date, together with such documentation and records as shall enable
the Trustee to select the Bonds to be redeemed. If a Change of
Control Repurchase Event occurs while any Bonds remain outstanding,
the Company or Trustee shall make an offer to each Bondholder to
repurchase all or any amount of each Bondholder's Bonds at the
redemption price set forth on the Bond.
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Section 3.02 Notice of Redemption.
(a) In
case the Company shall desire to exercise any right to redeem all
or, as the case may be, a portion of the Bonds in accordance with
any right reserved so to do, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Bonds
to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than five (5) days and not more than sixty
(60) days before the date fixed for redemption to such holders at
their last addresses as they shall appear upon the Bond Register
unless a shorter period is specified in the Bonds to be redeemed.
Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Bond designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Bonds. In the case of any redemption of Bonds prior to
the expiration of any restriction on such redemption provided in
the terms of such Bonds or elsewhere in this Indenture, the Company
shall furnish the Trustee with a Sole Member's Certificate
evidencing compliance with any such restriction. Each such notice
of redemption shall specify the date fixed for redemption and the
redemption price at which Bonds are to be redeemed, and shall state
that payment of the redemption price of such Bonds to be redeemed
will be made at the office or agency of the Company in the City of
Conshohocken, Pennsylvania, or such other location designated by
the Company, upon presentation and surrender of such Bonds, that
interest accrued to the date fixed for redemption will be paid as
specified in said notice, that from and after said date interest
will cease to accrue, and the CUSIP number of the Bonds and state
that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in the notice or printed on the
Bonds. If less than all the Bonds are to be redeemed, the notice to
the holders of Bonds to be redeemed in whole or in part shall
specify the particular Bonds to be so redeemed. In case any Bond is
to be redeemed in part only, the notice that relates to such Bond
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Bond, a new Bond or Bonds in principal
amount equal to the unredeemed portion thereof will be
issued.
(b) If
less than all of any class of the Bonds are to be redeemed, the
Company shall give the Trustee at least thirty (30) days' notice
(unless a shorter period is satisfactory to the Trustee) in advance
of the date fixed for redemption as to the aggregate principal
amount of Bonds to be redeemed, and thereupon the Trustee shall
select in a manner that complies with the requirements, if any, of
any applicable stock exchange or which the Bonds are listed and
that the Trustee deems appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Bonds of a denomination
larger than $1,000, the Bonds to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Bonds
to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect, by delivery of instructions signed on
its behalf by its Sole Member, instruct the Trustee or any paying
agent to call all or any part of the Bonds for redemption and to
give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the
Trustee or such paying agent as it may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Bond Register, transfer books or
other records, or suitable copies or extracts therefrom, sufficient
to enable the Trustee or such paying agent to give any notice by
mail that may be required under the provisions of this
Section.
Section 3.03 Payment Upon Redemption
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Bonds or portions of Bonds to be redeemed
specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for
redemption and interest on such Bonds or portions of Bonds shall
cease to accrue on and after the date fixed for redemption, unless
the Company shall default in the payment of such redemption price
and accrued interest with respect to any such Bond or portion
thereof. On presentation and surrender of such Bonds on or after
the date fixed for redemption at the place of payment specified in
the notice, said Bonds shall be paid and redeemed at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption (but if the date fixed for redemption is
an Interest Payment Date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section
2.02).
(b)
Upon presentation of any Bond that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
the office or agency where the Bond is presented shall deliver to
the holder thereof, at the expense of the Company, a new Bond of
authorized denominations in principal amount equal to the
unredeemed portion of the Bond so presented.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Principal, Premium and
Interest.
The
Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest, on the Bonds at
the time and place and in the manner provided herein and
established with respect to such Bonds.
15
Section 4.02 Maintenance of Office or Agency.
So
long as the Bonds remain Outstanding, the Company agrees to
maintain an office or agency in the City of Conshohocken,
Pennsylvania, or such other location designated by the Company, and
at such other location or locations as may be designated as
provided in this Section 4.02, where (i) Bonds may be
presented for payment, (ii) Bonds may be presented as herein above
authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Bonds
and this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company
shall, by written notice signed by its Sole Member and delivered to
the Trustee, designate some other office or agency in the City of
Conshohocken, Pennsylvania for such purposes or any of them. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Bonds may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided,
however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the City of
Conshohocken, Pennsylvania, or such other location designated by
the Company for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency. The
Trustee, as Bond Registrar, is designated the office where
(i) Bonds may be presented for payment and (ii) Bonds may be
presented as herein above authorized for registration of transfer
and exchange,
Section 4.03 Paying Agents.
(a)
The Company hereby appoints the Trustee as the initial paying
agent. If the Company shall appoint one or more paying agents for
the Bonds, other than the Trustee, the Company will cause each such
paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest on the Bonds
(whether such sums have been paid to it by the Company or by any
other obligor of such Bonds) in trust for the benefit of the
Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Bonds) to make any payment of the
principal of (and premium, if any) or interest on the Bonds when
the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth
in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to
the Bonds, it will on or before each due date of the principal of
(and premium, if any) or interest on Bonds, set aside, segregate
and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Bonds) to take such action. Whenever
the Company shall have one or more paying agents, it will, prior to
each due date of the principal of (and premium, if any) or interest
deposit with the paying agent a sum sufficient to pay the principal
(and premium, if any) or interest, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such paying agent is
the Trustee) the Company will promptly notify the Trustee of this
action or failure so to act.
(c)
Notwithstanding anything in this Section to the
contrary,
(1)
the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and
(2)
the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with
respect to such money.
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Section 4.04 Appointment to Fill Vacancy in Office of
Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section
7.11, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The
Company will not, while any of the Bonds remain Outstanding,
consolidate with or merge into any other Person, or sell, convey,
transfer or otherwise dispose of its property as an entirety or
substantially as an entirety to any other Person unless the
provisions of Article X hereof are complied with.
Section 4.06 Statement by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, a
Certificate, stating whether or not to the best knowledge of the
signer thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and
status thereof of which such signer may have
knowledge.
Section 4.07 Limitation
Issuance of Equity Interests.
The
Company shall not, directly or indirectly sell or enter into any
agreement for the issuance and sale of preferred equity interests
or any other equity interests with preference over common
stock.
Section 4.08 Bond Service Reserve.
The Company shall deposit with the Trustee,
and Trustee shall maintain in a separate reserve account three
percent (3%) of the net proceeds from
the sale of Bonds pursuant to this Indenture. Any such reserves
shall be held by the Trustee for as long as any of the Bonds are
outstanding and except as otherwise set forth herein during
such period shall be available to the Trustee solely for the
payment of the Company’s Bond Service Obligations.
Such funds shall be invested by the
Trustee upon the receipt of and in accordance with the written
instruction of the Company. The Trustee may conclusively rely upon
any such investment instruction. If no investment instruction is
received, the Trustee shall hold all such funds un-invested.
Provided no Event of Default has occurred and is continuing,
following the redemption of or repayment in full at maturity of all
of the Bonds, the Trustee shall release and transmit to the
Company, upon written direction of the Company, all amounts
remaining in the applicable reserve account, subject to the payment
of fees and costs related to the maintenance of the reserve
account. If an Event of Default has occurred and is continuing, the
Trustee shall apply any amounts in the Bond Service Reserve in
accordance with Section 6.03.
Section 4.09 Additional Indebtedness.
The
Company will not directly or indirectly through Subsidiaries, incur
any indebtedness, secured or unsecured, that would be senior to the
Bonds, unless all of the proceeds of such indebtedness, less any
costs of issuance or sale of such indebtedness, are used for the
repayment of the Bonds.
Section 4.10 Liens.
The
Company will not allow or permit a Lien on any Company Assets,
senior to that of the Bonds, without the approval or permission of
the holders of at least a majority in principal amount of the Bonds
at the time Outstanding.
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ARTICLE V
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND
THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of
Bondholders.
The
Company will furnish or cause to be furnished to the
Trustee
(1)
not more than 15 days after each Record Date a list, in such form
as the Trustee may reasonably require, of the names and addresses
of the holders of the Bonds as of such Record Date, provided that
the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company
and
(2)
at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that, in
either case, no such list need be furnished for any Bonds for which
the Trustee shall be the Bond Registrar.
Section 5.02 Preservation of Information; Communications With
Bondholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Bonds contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of
holders of Bonds received by the Trustee in its capacity as Bond
Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c)
Bondholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Bondholders with respect to their
rights under this Indenture or under the Bonds.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee, (i) monthly
reports of its cash and cash equivalents; (ii) annually, within one
hundred twenty (120) days following December 31st,
a written statement certifying that to the knowledge of the
Company's officers the Company is in compliance with this
Indenture, or specifying any Event of Default hereunder; and (iii)
within 15 days after the Company files the same with the SEC,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations
prescribe) that the Company files with the SEC pursuant to Section
13 or Section 15(d) of the Exchange Act; provided,
however, the Company shall not
be required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the SEC;
and provided
further, so long as such
filings by the Company are available on the SEC's Electronic Data
Gathering, Analysis and Retrieval System (XXXXX), such filings
shall be deemed to have been filed with the Trustee for purposes of
this Section 5.03 without any further action required by the
Company, provided,
however, that the Trustee shall
have no obligation whatsoever to determine if such filing has been
so made and shall have no obligation to review any of the reports
or other documentation delivered to it under this Section
5.03.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND BONDHOLDERS ON EVENT OF
DEFAULT
Section 6.01 Events of Default.
(a)
Whenever used herein, "Event of Default" means any one or more of
the following events that has occurred and is continuing (whatever
the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) the Company defaults in the payment of any
installment of interest, upon any of the Bonds as and when the same
shall become due and payable, and continuance of such default for a
period of 60 days; provided, however, that a valid extension of an
interest payment period by the Trustee (at the direction of
holders of at least a majority in principal amount of the Bonds at
the time Outstanding) or in accordance
with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of interest for this
purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Bonds as and when
the same shall become due and payable, and continuance of such
default for a period of 60 days, whether at maturity, upon
redemption, by declaration or otherwise; provided, however, that a
valid extension of the maturity of such Bonds by the Trustee
(at the direction of holders of at least a majority in principal
amount of the Bonds at the time Outstanding) or in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants
or agreements contained in this Indenture for a period of 120 days
after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice
of Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least a majority in principal amount
of the Bonds at the time Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy
Law
(i)
commences a voluntary case,
(ii)
consents to the entry of an order for relief against it in an
involuntary case,
(iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(iv)
makes a general assignment for the benefit of its
creditors;
(5)
a court of competent jurisdiction enters an order under any
Bankruptcy Law that
(i)
is for relief against the Company in an involuntary
case,
(ii)
appoints a Custodian of the Company or for all or substantially all
of its property, or
(iii)
orders the liquidation of the Company, and the orders remain
unstayed and in effect for 90 days; or
(6)
entry by any court having jurisdiction over the Company of a final
and non-appealable judgment or order for the payment of money in
excess of $10,000,000.00 (before the application of any
pre-judgment interest), singly or in the aggregate for all such
final judgments or orders against any Significant
Subsidiary.
19
(b)
In each and every such case, unless the principal of all the Bonds
shall have already become due and payable, either the Trustee or
the holders of a majority in aggregate principal amount of the
Bonds then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Bondholders), may
declare the principal of (and premium, if any, on) and accrued and
unpaid interest, on all the Bonds to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable.
(c)
At any time after the principal of the Bonds shall have been so
declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate
principal amount of the Bonds then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1)
the Company has paid or deposited with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Bonds and
the principal of (and premium, if any, on) any and all Bonds that
shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Bonds to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.07, and
(2)
any and all Events of Default under the Indenture, other than the
nonpayment of principal on Bonds that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06. No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right consequent
thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with
respect to Bonds under this Indenture and such proceedings shall
have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to
any determination in such proceedings, the Company, and the Trustee
shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and
the Trustee shall continue as though no such proceedings had been
taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a)
The Company covenants that
(1)
in case it shall default in the payment of any installment of
interest on any of the Bonds, as and when the same shall have
become due and payable, and such default shall have continued for a
period of 60 days, or
(2)
in case it shall default in the payment of the principal of (or
premium, if any, on) any of the Bonds when the same shall have
become due and payable, whether upon maturity or upon redemption,
and such default shall have continued for a period of 60
days,
then,
upon demand of the Trustee or the Bondholders of a majority in
aggregate principal amount of the Bonds, the Company will pay to
the Trustee, for the benefit of the holders of the Bonds, the whole
amount that then shall have been become due and payable on all such
Bonds for principal (and premium, if any) or interest, or both, as
the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of
interest at the rate per annum expressed in the Bonds; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.07.
(b)
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Bonds
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or other
obligor upon the Bonds, wherever situated. In addition to any
action or proceeding at law or in equity, the Trustee shall have
the right to cause the Company to cause the sale of all Properties
then held by the Company or its Subsidiaries and may collect the
moneys received from such sales, following the payment of any fees,
costs or expenses of such sales.
20
(c)
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Bonds allowed for the entire amount due and
payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that
may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.07;
and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Bonds
to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to
such Bondholders, to pay to the Trustee any amount due it under
Section 7.07.
(d) All rights of action and of
asserting claims under this Indenture, or under any of the terms
established with respect to the Bonds, may be enforced by the
Trustee without the possession of any of such Bonds, or the
production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.07, be for the
ratable benefit of the holders of the Bonds. In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law. Nothing contained
herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Bondholder any plan
of reorganization, arrangement, adjustment or composition affecting
the Bonds or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Bondholder in any
such proceeding.
Section 6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article together
with any funds held by the Trustee shall be applied in the
following order, at the date or dates fixed by the
Trustee:
FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.07;
SECOND:
To the payment of the amounts then due and unpaid upon Bonds of for
principal (and premium, if any) and interest, in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Bonds for principal (and premium,
if any) and interest, respectively;
THIRD:
Upon written direction of the Company, to the payment of the
remainder, if any, to the Company or any other Person lawfully
entitled thereto as directed by the Company.
Section 6.04 Limitation on Suits.
No
holder of any Bond shall have any right by virtue or by availing of
any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1)
such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof
specifying such Event of Default, as hereinbefore
provided;
(2)
the holders of not less than a majority in aggregate principal
amount of the Bonds then Outstanding shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder;
(3)
such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby;
(4)
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such
action, suit or proceeding; and
21
(5)
notwithstanding anything contained herein to the contrary, the
right of any holder of any Bond to receive payment of the principal
of (and premium, if any) and interest, on such Bond, as therein
provided, on the respective due dates expressed in such Bond (or in
the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Bond
hereunder it is expressly understood, intended and covenanted by
the taker and holder of every Bond with every other such taker and
holder and the Trustee, that no one or more holders shall have any
right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Bonds, or to obtain or
seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common
benefit of all holders of Bonds. For the protection and enforcement
of the provisions of this Section, each and every Bondholder and
the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a)
Except as otherwise provided in Section 2.06, all powers and
remedies given by this Article to the Trustee or to the Bondholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee
or the holders of the Bonds, by judicial proceedings, or otherwise,
to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established
with respect to such Bonds.
(b)
No delay or omission of the Trustee or of any holder of any of the
Bonds to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such
default or on acquiescence therein; and, subject to the provisions
of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Bondholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or
by the Bondholders.
Section 6.06 Control by Bondholders.
The
holders of a majority in aggregate principal amount of the Bonds at
the time Outstanding, determined in accordance with Section 8.01,
shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee;
provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the
provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee or its
counsel, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Bonds at the time Outstanding
affected thereby, determined in accordance with Section 8.01, may
on behalf of the holders of all of the Bonds waive any past default
in the performance of any of the covenants contained herein and its
consequences, except a default in the payment of the principal of
(or premium, if any) or interest on any of the Bonds as and when
the same shall become due by the terms of such Bonds otherwise than
by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)) or in respect of a covenant or
provision hereof which under Article IX cannot be modified or
amended without the consent of the holder of each Outstanding Bond
affected. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Bonds shall be restored
to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Bonds by
such holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Bondholder, or group of Bondholders, holding more
than 10% in aggregate principal amount of the Outstanding Bonds, or
to any suit instituted by any Bondholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any
Bond, on or after the respective due dates expressed in such Bond
or established pursuant to this Indenture.
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ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of
Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred (that has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b)
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its
own grossly negligent failure to act, or its own willful
misconduct, except that:
(1)
prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall be responsible only for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture;
(2)
the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts;
(3)
the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Bonds at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Bonds; and
(4)
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 7.02 Notice of Defaults.
(a)
The Trustee shall not be required to take notice or be deemed to
have notice of any Default or Event of Default hereunder, unless a
Responsible Officer of the Trustee shall be specifically notified
in writing of such default by the Company, or the Owners of at
least 25% in principal amount of all Outstanding Bonds,
and in the absence of such notice so delivered, the Bond Trustee
may conclusively assume there is no default except as
aforesaid.
(b) If
an Event of Default occurs hereunder of which the Trustee has
notice or is deemed to have notice in accordance with Section
7.02(a), the Trustee shall promptly give the holders notice of such
Event of Default; provided, however, that in the case of any Event
of Default of the character specified in clause (3) of Section
6.01(a), no such notice to holders shall be given until at least
30 days after the occurrence thereof.
Section 7.03 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
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(b)
Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an instrument signed in
the name of the Company, by the Sole Member thereof (unless other
evidence in respect thereof is specifically prescribed
herein);
(c)
The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance
thereon;
(d)
The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request,
order or direction of any of the Bondholders, pursuant to the
provisions of this Indenture, unless such Bondholders shall have
offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that
may be incurred therein or thereby;
(e)
The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f)
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, consent, order,
approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Bonds (determined
as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
and
(g)
The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(h) None of the provisions of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to it against such risk or
liability is not assured to it;
(i)
In no event shall the Trustee, including its Responsible Officers,
be responsible or liable for special, indirect, or consequential
loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of
the form of action;
(j)
The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder should it act as Paying
Agent or Registrar at any time and each agent, custodian and other
person employed by the Trustee to act hereunder
(k) The
Trustee shall not be responsible for any recital herein or in the
Bonds (except with respect to the Certificate of Authentication of
the Trustee endorsed on the Bonds), or for the recording or
rerecording, filing or refiling of this Indenture or any financing
statement or security agreement in connection therewith or for the
validity of the execution by the Company of this Indenture or of
any supplemental indentures or instruments of further
assurance.
Section 7.04 Trustee Not Responsible for Recitals or Issuance or
Bonds.
(a)
The recitals contained herein and in the Bonds shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Bonds.
(c)
The Trustee shall not be accountable for the use or application by
the Company of any of the Bonds or of the proceeds of such Bonds,
or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture, or for
the use or application of any moneys received by any paying agent
other than the Trustee.
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Section 7.05 May Hold Bonds.
The
Trustee or any paying agent or Bond Registrar, in its individual or
any other capacity, may become the owner or pledgee of Bonds with
the same rights it would have if it were not Trustee, paying agent
or Bond Registrar.
Section 7.06 Moneys Held in Trust.
Subject
to the provisions of Section 11.05 and Section 4.08, all moneys
received by the Trustee shall, until used or applied as herein
provided, be held un-invested in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay
thereon.
Section 7.07 Compensation and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company, and
the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee (including, without limitation,
fees for extraordinary services rendered), and, except as otherwise
expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ and the reimbursement of
all extraordinary expenses incurred) except any such expense,
disbursement or advance as may arise from its gross negligence or
bad faith. The fees, charges and expenses specified herein are for
the typical and customary services as trustee. Fees for additional
or extraordinary services not now part of the customary services
provided, such as special services during default or additional
government reporting requirements will be charged at the then
current rates for such services.
The
Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without gross
negligence or bad faith on the part of the Trustee and arising out
of or in connection with the acceptance or administration of this
trust and the performance of its duties and the taking of any
enforcement actions hereunder, including the costs and expenses of
defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Bonds
upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of
particular Bonds. The
obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.
Section 7.08 Reliance on Officer's Certificate.
Except
as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
gross negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by a Sole Member's
Certificate delivered to the Trustee and such certificate, in the
absence of gross negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
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Section 7.09 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, it
shall, within 90 days after ascertaining that it has a conflicting
interest, or within 30 days after receiving written notice from the
Company that it has a conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect
specified in Section 7.11.
Section 7.10 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Bonds issued
hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the SEC,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least One Hundred
Million U.S. Dollars ($100,000,000), and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia
authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.11.
Section 7.11 Resignation and Removal; Appointment of
Successor.
(a)
The Trustee or any successor hereafter appointed, may at any time
resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage
prepaid, to the Bondholders, as their names and addresses appear
upon the Bond Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Sole Member, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Bondholder who
has been a bona fide holder of a Bond or Bonds for at least six
months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall
occur:
(1)
the Trustee shall fail to comply with the provisions of Section
7.09 after written request therefor by the Company or by any
Bondholder who has been a bona fide holder of a Bond or Bonds for
at least six months; or
(2)
the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.10 and shall fail to resign after written
request therefor by the Company or by any such Bondholder;
or
(3)
the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall
be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect
to all Bonds and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Sole Member, one copy of
which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, unless, in the case of a
failure to comply with Section 7.09, any Bondholder who has been a
bona fide holder of a Bond or Bonds for at least six months may, on
behalf of that holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor
trustee.
(c)
The holders of a majority in aggregate principal amount of the
Bonds at the time Outstanding may at any time remove the Trustee by
so notifying the Trustee and the Company and may appoint a
successor Trustee with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Bonds pursuant to any of the
provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee as provided in Section
7.12.
26
Section 7.12 Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with
respect to all Bonds, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b)
Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) of this
Section.
(d)
No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Bondholders, as their names and addresses appear
upon the Bond Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
Section 7.13 Merger, Conversion, Consolidation or Succession to
Business.
Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.09 and eligible under
the provisions of Section 7.10, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case
any Bonds shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Bonds so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Bonds.
ARTICLE VIII
CONCERNING THE BONDHOLDERS
Section 8.01 Evidence of Action by Bondholders.
Whenever
in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Bonds may
take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage have joined
therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders in Person or
by agent or proxy appointed in writing. If the Company shall
solicit from the Bondholders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by a Sole Member's Certificate,
fix in advance a record date for the determination of Bondholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but
only the Bondholders of record at the close of business on the
record date shall be deemed to be Bondholders for the purposes of
determining whether Bondholders of the requisite proportion of
Outstanding Bonds have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Bonds shall
be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Bondholders on the
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later
than six months after the record date.
27
Section 8.02 Proof of Execution by Bondholders.
Subject
to the provisions of Section 7.01, proof of the execution of any
instrument by a Bondholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any
Person of any of the Bonds shall be sufficient if made in the
following manner:
(a)
The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Bonds shall be proved by the Bond Register of such
Bonds or by a certificate of the Bond Registrar
thereof.
(c)
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem
necessary.
Section 8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Bond,
the Company, the Trustee, any paying agent and any Bond Registrar
may deem and treat the Person in whose name such Bond shall be
registered upon the books of the Company as the absolute owner of
such Bond (whether or not such Bond shall be overdue and
notwithstanding any notice of ownership or writing thereon made by
anyone other than the Bond Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any)
and (subject to Section 2.02) interest on such Bond and for all
other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Bond Registrar shall be affected by any notice
to the contrary.
Section 8.04 Certain Bonds Owned by Company
Disregarded.
In
determining whether the holders of the requisite aggregate
principal amount of Bonds have concurred in any direction, consent
of waiver under this Indenture, the Bonds that are owned by the
Company or any other obligor or by any Person directly or
indirectly controlling or controlled by or under common control
with the Company or any other obligor shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver, only Bonds that the Trustee actually knows are
so owned shall be so disregarded. The Bonds so owned that have been
pledged in good faith may be regarded as Outstanding for the
purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with
respect to 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 or any such other obligor.
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.
Section 8.05 Actions Binding on Future Bondholders.
At
any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount
of the Bonds specified in this Indenture in connection with such
action, any holder of a Bond that is shown by the evidence to be
included in the Bonds the holders of which have consented to such
action may, by filing written notice with the Trustee, and upon
proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Bond. Except as aforesaid any such action
taken by the holder of any Bond shall be conclusive and binding
upon such holder and upon all future holders and owners of such
Bond, and of any Bond issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Bond. Any
action taken by the holders of the majority or percentage in
aggregate principal amount of the Bonds specified in this Indenture
in connection with such action shall be conclusively binding upon
the Company, the Trustee and the holders of all the
Bonds.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of
Bondholders.
In
addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto,
without the consent of the Bondholders, for one or more of the
following purposes:
(1)
to cure any ambiguity, defect, or inconsistency herein or in the
Bonds;
(2)
to provide for uncertificated Bonds in addition to or in place of
certificated Bonds;
(4)
to add to the covenants, restrictions, conditions or provisions
relating to the Company for the benefit of the holders of all of
the Bonds, to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the
Company;
(5)
to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Bonds (prior to the issuance
thereof), as herein set forth;
(6)
to make any change that does not adversely affect the rights of any
Bondholder in any material respect;
(7)
to provide for the issuance of and establish the form and terms and
conditions of the Bonds, to establish the form of any
certifications required to be furnished pursuant to the terms of
this Indenture or Bonds, or to add to the rights of the holders of
any Bonds;
(8)
to evidence and provide for the acceptance of appointment hereunder
by a successor Xxxxxxx and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 7.12;
or
(9)
to comply with any requirements of the SEC or any
successor.
The
Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee's own rights,
duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent
of the holders of any of the Bonds at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
29
Section 9.02 Supplemental Indentures With Consent of
Bondholders.
With
the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the
Bonds at the time Outstanding, the Company and the Trustee may from
time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders of the
Bonds under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of
each Bond then Outstanding and affected thereby:
(1)
extend the maturity of the principal of, or any installment of
principal of or interest on, any Bond, or reduce the principal
amount thereof, or reduce the rate of interest or extend the time
of payment of interest thereon or reduce any premium payable upon
the redemption thereof, or reduce the amount of the principal of
any other Bond which would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01 or
change the coin or currency in which any Bond or any premium or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity
thereof (or, in the case of redemption, on or after the redemption
date), or
(2)
reduce the percentage in principal amount of the Outstanding Bonds,
the consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any
waiver of certain defaults hereunder and their consequences
provided for in this Indenture, or
(3)
modify any of the provisions of this Section or Section 6.06
relating to waivers of default, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
holder of each Outstanding Bond affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of
Sections 7.12 and 9.01(8).
Section 9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the
holders of Bonds shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.
Section 9.04 Bonds Affected by Supplemental
Indentures.
Bonds
affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the
provisions of this Article, may bear a notation in form approved by
the Company, provided such form meets the requirements of any
exchange upon the Bonds may be listed, as to any matter provided
for in such supplemental indenture. If the Company shall so
determine, new Bonds so modified as to conform, in the opinion of
the Sole Member of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Bonds then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon
the request of the Company and upon the filing with the Trustee of
evidence of the consent of Bondholders required to consent thereto
as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in
its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, may receive a Sole Member's Certificate or an Opinion
of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the
execution thereof.
Promptly
after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section,
the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such
supplemental indenture, to the Bondholders as their names and
addresses appear upon the Bond Register. Any failure of the Trustee
to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
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ARTICLE X
SUCCESSOR ENTITY
Section 10.01 Company May Not Consolidate, Etc.
Except
as established in one or more indentures supplemental to this
Indenture, nothing contained in this Indenture or in any of the
Bonds shall permit any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties,
or shall permit any sale, conveyance, transfer or other disposition
of the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other Person
(whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the
same.
ARTICLE XI
SATISFACTION AND DISCHARGE; REDEMPTION
Section 11.01 Satisfaction and Discharge.
This
Indenture will be discharged and will cease to be of further effect
(except as to any surviving rights of registration of transfer or
exchange of Bonds herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture,
when:
(1)
either (A) all Bonds theretofore authenticated and delivered (other
than (i) any Bonds that shall have been destroyed, lost or stolen
and that shall have been replaced or paid as provided in Section
2.06 and (ii) Bonds for whose payment money or noncallable
Governmental Obligations have theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 11.05) have been delivered to the Trustee for cancellation;
or (B) all Bonds not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii) will by their
terms become due and payable within one year or (iii) are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds in trust for the purpose (x) moneys in an
amount, or (y) noncallable Governmental Obligations the scheduled
principal of and interest on which in accordance with their terms
will provide, not later than the due date of any payment, money in
an amount, or (z) a combination thereof, sufficient, in the case of
(y) or (z), in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, at maturity
or upon redemption, all Bonds not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any)
and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the
Company has delivered to the Trustee a Sole Member's Certificate
and an Opinion of Counsel, each stating that all the conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Trustee under Section 7.07 and, if money shall have been
deposited with the Trustee pursuant to subclause (y) of clause (1)
of this Section, the obligations of the Trustee under Sections
11.03 and 11.05 shall survive.
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Section 11.02 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and shall be
available for payment as due, either directly or through any paying
agent (including the Company acting as its own paying agent), to
the holders of the Bondholders for the payment or redemption of
which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section 11.03 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such
moneys or Governmental Obligations.
Section 11.04 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment
of principal of (or premium, if any) or interest on the Bonds that are not applied but
remain unclaimed by the holders of such Bonds for at least two
years after the date upon which the principal of (and premium, if
any) or interest on such
Bonds shall have respectively become due and payable, or such other
shorter period set forth in applicable escheat or abandoned
property law, shall be repaid to the Company on May 31 of each year
or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Bonds
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof
as an unsecured general creditor, unless an abandoned property law
designates another Person.
Section 11.05 Reinstatement
If the
Trustee (or other qualifying trustee or any paying agent appointed
as provided herein) is unable to apply any moneys or Government
Obligations in accordance with this Article 11 by reason of any
legal proceeding or any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and the Bonds shall be revived and reinstated as
though no such deposit had occurred, until such time as the Trustee
(or other qualifying trustee or paying agent) is permitted to apply
all such moneys and Government Obligations in accordance with this
Article 11; provided, however, that if the Company makes any
payment of the principal of or premium, if any, or
interest, if any, on the Bonds
following the reinstatement of its obligations as aforesaid, the
Company shall be subrogated to the rights of the Bondholders to
receive such payment from the funds held by the Trustee (or other
qualifying trustee or paying agent).
ARTICLE XII
IMMUNITY OF ORGANIZERS, MEMBERS, OFFICERS
AND MANAGERS
Section 12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Bond, or for any claim based thereon or
otherwise in respect thereof, shall be had against any organizer,
member, officer or manager, past, present or future as such, of the
Company or of any predecessor or successor entity, either directly
or through the Company or any such predecessor or successor entity,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be
incurred by, the organizers, members, officers or managers as such,
of the Company or of any predecessor or successor entity, or any of
them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Bonds or
implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such organizer, member, officer or manager as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Bonds or implied
therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issuance of such Bonds.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the
covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act
or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the
Company.
Section 13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Sole
Member and delivered to the Trustee may surrender any of the powers
reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor
corporation.
Section 13.04 Notices
Except
as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Bonds to or on
the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as
follows: c/o LHL Strategies, Inc., 0000 X. Xxxxxx Xx., Xxx 000,
Xxxxxxxxxxxx, XX 00000. Any notice, election, request or demand by
the Company or any Bondholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the
Trustee.
Section 13.05 Governing Law.
This
Indenture and each Bond shall be deemed to be a contract made under
the internal laws of the State of Delaware, and for all purposes
shall be construed in accordance with the laws of said
State.
Section 13.06 Treatment of Bonds as Debt.
It
is intended that the Bonds will be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this
intention.
Section 13.07 Compliance Certificates and Opinions.
(a)
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company, shall furnish to the Trustee a Sole Member's Certificate
stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b)
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include
(1)
a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a
statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a
statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
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Section 13.08 Payments on Business Days.
Except
as set forth in a Sole Member's Certificate, or established in one
or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Bond or
the date of redemption of any Bond shall not be a Business Day,
then payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
Section 13.09 Counterparts.
This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 13.10 Separability.
In
case any one or more of the provisions contained in this Indenture
or in the Bonds shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Bonds, but this Indenture and such Bonds shall
be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 13.11 Electronic Storage. The parties agree that the transaction described
herein may be conducted and related documents may be stored by
electronic means. Copies, telecopies, facsimiles, electronic files
and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original
documents for all purposes, including the filing of any claim,
action or suit in the appropriate court of law.
[Remainder of page intentionally left blank. Signature page
follows.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
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a Delaware limited liability company
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By:
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LHL Strategies, Inc.
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Its:
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Sole Member
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By:
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Name:
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Xxxxxxx X. Xxxxxxxx
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Its:
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Chief Executive Officer
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UMB BANK, as Trustee
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By:
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Name:
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Title:
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EXHIBIT A
(Form of Class A Bond)
EXHIBIT B
(Form of Class B Bond)
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