RED OAK CAPITAL INTERMEDIATE INCOME FUND, LLC a Delaware limited liability company AND UMB Bank, N.A. Trustee INDENTURE Dated as of __________, 2020 Debt Securities
Exhibit 3(a)
a Delaware limited liability company
AND
UMB Bank, N.A.
Trustee
Dated as of __________, 2020
Debt Securities
TABLE OF CONTENTS(1)
|
||||
ARTICLE I
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
|
|
1
|
|
|
Section 1.01
|
Definitions of Terms
|
|
1
|
|
Section 1.02
|
Rules of Construction.
|
|
6
|
|
Section 1.03
|
Form of Documents Delivered to Trustee
|
|
7
|
ARTICLE II
|
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES
|
7
|
||
|
Section 2.01
|
Form of Bonds and Trustee’s Certificate.
|
|
7
|
|
Section 2.02
|
Denominations: Provisions for Payment, Maturity.
|
|
8
|
|
Section 2.03
|
Execution and Authentication.
|
|
10
|
|
Section 2.04
|
Registration of Transfer and Exchange.
|
|
10
|
|
Section 2.05
|
[Intentionally Deleted]
|
|
11
|
|
Section 2.06
|
Mutilated, Destroyed, Lost or Stolen Bonds.
|
|
11
|
|
Section 2.07
|
Cancellation.
|
|
12
|
|
Section 2.08
|
Benefits of Indenture.
|
|
12
|
|
Section 2.09
|
Authenticating Agent.
|
|
12
|
|
Section 2.10
|
Global Form of Bonds
|
|
13
|
|
Section 2.11
|
Book-Entry Registration for Uncertificated Bonds
|
|
13
|
|
Section 2.12
|
CUSIP Numbers
|
|
14
|
ARTICLE III
|
REDEMPTION OF SECURITIES
|
|
14
|
|
|
Section 3.01
|
Redemption.
|
|
14
|
|
Section 3.02
|
Notice of Redemption.
|
|
14
|
|
Section 3.03
|
Payment Upon Redemption.
|
|
15
|
|
Section 3.04
|
Redemption Upon Death or Disability or Bankruptcy
|
|
16
|
ARTICLE IV
|
COVENANTS
|
|
|
16
|
|
Section 4.01
|
Payment of Principal, Premium and Interest.
|
|
16
|
|
Section 4.02
|
Maintenance of Office or Agency.
|
|
16
|
|
Section 4.03
|
Paying Agents.
|
|
17
|
|
Section 4.04
|
Appointment to Fill Vacancy in Office of Trustee.
|
|
18
|
|
Section 4.05
|
Compliance with Consolidation Provisions.
|
|
18
|
|
Section 4.06
|
Debt Limit.
|
|
18
|
|
Section 4.07
|
[Intentionally Deleted]
|
|
18
|
|
Section 4.08
|
Liens.
|
|
18
|
|
Section 4.09
|
Payment of Taxes and Other Claims.
|
|
18
|
|
Section 4.10
|
Further Assurances; Recording.
|
|
18
|
i
ARTICLE V
|
BONDHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
|
|
19
|
|
|
Section 5.01
|
Company to Furnish Trustee Names and Addresses of
Bondholders.
|
|
19
|
|
Section 5.02
|
Preservation of Information; Communications with
Bondholders.
|
|
19
|
|
Section 5.03
|
Reports by the Company.
|
|
19
|
ARTICLE VI
|
REMEDIES OF THE TRUSTEE AND BONDHOLDERS ON EVENT OF
|
|
|
|
DEFAULT
|
|
|
|
20
|
|
Section 6.01
|
Event of Default.
|
|
20
|
|
Section 6.02
|
Collection of Indebtedness and Suits for Enforcement by
Trustee.
|
|
22
|
|
Section 6.03
|
Application of Moneys Collected.
|
|
23
|
|
Section 6.04
|
Limitation on Suits.
|
|
23
|
|
Section 6.05
|
Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
|
|
24
|
|
Section 6.06
|
Control by Bondholders.
|
|
24
|
|
Section 6.07
|
Undertaking to Pay Costs.
|
|
24
|
ARTICLE VII
|
CONCERNING THE TRUSTEE
|
|
25
|
|
|
Section 7.01
|
Certain Duties and Responsibilities of Trustee.
|
|
25
|
|
Section 7.02
|
Notice of Defaults.
|
|
25
|
|
Section 7.03
|
Certain Rights of Trustee.
|
|
26
|
|
Section 7.04
|
Trustee Not Responsible for Recitals or Issuance or
Bonds.
|
|
27
|
|
Section 7.05
|
May Hold Bonds.
|
|
27
|
|
Section 7.06
|
Moneys Held in Trust.
|
|
27
|
|
Section 7.07
|
Compensation and Reimbursement.
|
|
27
|
|
Section 7.08
|
Reliance on Manager’s Certificate.
|
|
28
|
|
Section 7.09
|
Disqualification; Conflicting Interests.
|
|
28
|
|
Section 7.10
|
Corporate Trustee Requires; Eligibility.
|
|
28
|
|
Section 7.11
|
Resignation and Removal; Appointment of Successor.
|
|
29
|
|
Section 7.12
|
Acceptance of Appointment By Successor.
|
|
29
|
|
Section 7.13
|
Merger, Conversion, Consolidation or Succession to
Business.
|
|
30
|
ARTICLE VIII
|
CONCERNING THE BONDHOLDERS
|
|
30
|
|
|
Section 8.01
|
Evidence of Action by Bondholders.
|
|
30
|
|
Section 8.02
|
Proof of Execution by Bondholders.
|
|
31
|
|
Section 8.03
|
Who May be Deemed Owners.
|
|
31
|
|
Section 8.04
|
Certain Bonds Owned by Company Disregarded.
|
|
31
|
|
Section 8.05
|
Actions Binding on Future Bondholders.
|
|
32
|
ii
ARTICLE IX
|
SUPPLEMENTAL INDENTURES
|
|
32
|
|
|
Section 9.01
|
Supplemental Indentures without the Consent of
Bondholders.
|
|
32
|
|
Section 9.02
|
Supplemental Indentures with Consent of Bondholders.
|
|
33
|
|
Section 9.03
|
Effect of Supplemental Indentures.
|
|
33
|
|
Section 9.04
|
Bonds Affected by Supplemental Indentures.
|
|
34
|
|
Section 9.05
|
Execution of Supplemental Indentures.
|
|
34
|
ARTICLE X
|
SUCCESSOR ENTITY
|
|
34
|
|
|
Section 10.01
|
Company May Consolidate, Etc.
|
|
34
|
|
Section 10.02
|
Successor Entity Substituted.
|
|
35
|
|
Section 10.03
|
Evidence of Consolidation, Etc. to Trustee.
|
|
35
|
ARTICLE XI
|
SATISFACTION AND DISCHAREGE; DEFEASANCE
|
|
35
|
|
|
Section 11.01
|
Satisfaction and Discharge.
|
|
35
|
|
Section 11.02
|
Deposited Moneys to be Held in Trust.
|
|
36
|
|
Section 11.03
|
Payment of Moneys Held by Paying Agents.
|
|
36
|
|
Section 11.04
|
Repayment of Company.
|
|
36
|
|
Section 11.05
|
Reinstatement.
|
|
36
|
ARTICLE XII
|
IMMUNITY OF ORGANIZERS, MEMBERS, OFFICERS AND MANAGERS
|
|
37
|
|
|
Section 12.01
|
No Recourse.
|
|
37
|
ARTICLE XIII
|
MISCELLANEOUS PROVISIONS
|
|
37
|
|
|
Section 13.01
|
Effect on Successors and Assigns.
|
|
37
|
|
Section 13.02
|
Actions by Successor.
|
|
37
|
|
Section 13.03
|
Surrender of Company Powers.
|
|
37
|
|
Section 13.04
|
Notices.
|
|
37
|
|
Section 13.05
|
Governing Law.
|
|
38
|
|
Section 13.06
|
Treatment of Bonds as Debt.
|
|
38
|
|
Section 13.07
|
Compliance Certificates and Opinions
|
|
38
|
|
Section 13.08
|
Payments on Business Days
|
|
38
|
|
Section 13.09
|
Counterparts.
|
|
38
|
|
Section 13.10
|
Separability.
|
|
39
|
|
Section 13.11
|
Electronic Storage
|
|
39
|
Form of Bond
|
|
|
Exhibit A
|
|
Form of Pledge and Security Agreement
|
|
Exhibit B
|
(1) 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.
iii
INDENTURE, dated as of _________, 2020,
between RED OAK CAPITAL INTERMEDIATE INCOME FUND, LLC, a Delaware
limited liability company (the “Company”), and UMB
Bank, N.A., a national banking association, 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 secured
debt securities (hereinafter referred to as the
“Bonds”) to be issued as registered Bonds without
coupons, 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.
“Authenticating Agent” means an
authenticating agent with respect to the Bonds appointed by the
Trustee pursuant to Section 2.09.
“Bankruptcy” shall mean, for any Person, the (i)
commencement of a voluntary bankruptcy case by that Person; (ii)
consent to the entry of an order for relief against such Person in
an involuntary bankruptcy case; (iii) consent to the appointment of
a custodian of it or for all or substantially all of its
property.
“Bankruptcy Law” means Title 11,
U.S. Code, or any similar federal or state law for the relief of
debtors.
1
“Bonds”
means any debt security authorized, authenticated and delivered
under this Indenture, together with all classes, sub-classes,
series and sub-series of any such securities.
“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.
“Bond Service Obligation” means the
amount payable by the Company in principal and interest 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 New York, New York, are authorized or obligated by law,
executive order or regulation to close.
“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, 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, or the NYSE, the NYSE Amex Equities, or the NYSE Amex, or
the Nasdaq Stock Market, or listed or quoted on an exchange or
quotation system that is a successor to the NYSE, the NYSE Amex or
the Nasdaq Stock Market.
“Closing” means each closing of sales of the
Bonds.
“Collateral Documents” means (i) the Pledge and Security Agreement; and
(ii) any other agreements, documents or instruments, including any
financing statements and amendments or supplements thereto,
creating, perfecting or evidencing any Liens securing any Bonds,
and any other obligation under this Indenture or the Collateral
Documents.
“Commission” means the United States Securities
and Exchange Commission.
“Company” means Red Oak Capital
Intermediate Income Fund, 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.
2
“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,
Xxxxxxxx 00000, 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.
“Depositary” means, with
respect to the Bonds, DTC 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.
“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.
“Holder Redemption
Event” has the meaning
set forth in Section 3.04(a).
“Indebtedness” means, with respect to any Person and
without duplication, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing the
balance deferred and unpaid of the purchase price of any property
(including capital lease obligations) or the expenditure for any
services or representing any hedging obligations, including without
limitation, any such balance that constitutes an accrued expense or
an account or trade payable, if and to the extent any of the
foregoing indebtedness (other than letters of credit and hedging
obligations) would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP, and also includes, to
the extent not otherwise included, (a) the guarantee of items that
would be included within this definition, and (b) liability for
items that would arise by operation of a Person’s status as a
general partner of a partnership.
3
“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
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
“Initial Interest Payment Date”
means the Interest Payment Date corresponding to the first full
fiscal quarter following the initial issuance of the
Bonds.
“Interest Accrual Period” means, if
interest has been paid, the applicable fiscal quarter immediately
preceding an Interest Payment Date, or if interest has not been
paid, from the date of issuance to the end of the first full fiscal
quarter occurring thereafter.
“Interest Payment Date” means any
January 25th, April 25th, July
25th and October 25th, beginning with the Initial Interest Payment
Date and continuing 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).
“Manager” means the Manager
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 Manager is Red Oak Capital Participation Fund GP, LLC,
a Delaware limited liability company.
“Manager’s Certificate” means
a certificate signed by the Manager 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.
“Maturity
Date” means, with respect
to any Security, the date on which the principal of such Security
becomes due and payable as therein provided.
“Maturity Record
Date” means, with respect
to any Security, 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 Security.
“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.
“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.
“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.
4
“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.
“Pledge and Security
Agreement” means that
certain Pledge and Security Agreement by and between the Company
and the Trustee (in its capacity as trustee under this Indenture),
as the same may be amended, modified or supplemented from time to
time in the future, which agreement is a Collateral Document with
respect to the Bonds issued hereunder. The form of Pledge and
Security Agreement is attached hereto as Exhibit
B.
“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 Xxxx.
“Price to Public” means $1,000 per
Bond.
“Record Date” means, for each
fiscal quarter, the last day of such fiscal quarter.
“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.
“Repurchase
Date” shall have the
meaning set forth in Section 3.04(b).
“Repurchase
Penalty” means, (i) if
the Repurchase Date is within 12 months of the date of issuance of
the applicable Bond or beneficial interest therein, then 10% of the
initial principal amount of such Bond or beneficial interest being
repurchased; and (ii) if the Repurchase Date is later than the date
which is 12 months following the issuance date of the applicable
Bond or beneficial interest therein, then 8% of the initial
principal amount of such Bond or beneficial interest being
repurchased.
“Repurchase
Price” means, with
respect to any Bond to be repurchased, the principal amount of such
Security plus the interest accrued but unpaid during the Interest
Accrual Period up to but not including the Repurchase Date for such
Bond, minus the Repurchase Penalty, if any.
“Repurchase
Request” means a written
notice from a Bondholder to the Company stating that such
Bondholder is making an irrevocable request for the Company to
repurchase such Bondholder’s Bonds pursuant to Section
3.04.
“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.
“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.
5
“Total Permanent
Disability” means a
determination by a physician approved by the Company that the
Bondholder or the holder of a beneficial interest in a Bond, who is
a natural person and who was gainfully employed on a full-time
basis at the date they were issued such Xxxx, is unable to work on
a full-time basis at all during the immediately succeeding 24-month
period. For purposes of this definition, “working on a
full-time basis” shall mean working at least 40 hours per
week.
“Trustee” means UMB Bank, N.A.,
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.
6
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.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND
EXCHANGE OF SECURITIES
Section
2.01
Form
of Bonds and Trustee’s Certificate.
The
Bonds may be issued in book-entry form, uncertificated form, or
certificated form. Except for Bonds held by a Depositary through a
global note, Bonds will only be certificated at the Company’s
discretion. In the event the Bonds are issued in certificated form,
the Bonds and the Trustee’s certificate of authentication
shall be substantially in the form of Exhibit A 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 Company 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.
The
aggregate principal amount of Bonds that may be issued under this
Indenture is unlimited. Bonds shall be issued from time to time
upon receipt by the Trustee of a written order of the Company
certifying that a Closing has occurred, 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 Paying Agent/Registrar to
maintain the Bond Register and make the payments to the registered
holders. The Paying Agent/Registrar may conclusively rely upon such
information provided by the Company.
7
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 in four series, Series A, Series B,
Series C and Series D, 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 will be
issued for a total of six months. Each series of Bonds will mature
on the date which is the last day of the 30th month from the
initial issuance date of Bonds in such series and will bear
interest at a fixed rate of six percent (6%) per annum payable on
an Interest Payment Date. The Bonds shall bear interest from the
date of issuance at the rate prescribed on the Bond, payable
quarterly in arrears on each Interest Payment Date. Interest
payable shall be calculated using the Interest Accrual Period
immediately preceding such Interest Payment Date. 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 and
any interest on the Bonds shall be made to the registered owner of
the Bond, including to a Depositary or its nominee, as the case may
be, as the 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:
(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 paying agent 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.
8
(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 180 days prior to a Maturity Date for any Bond, the
Company will send to 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 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 term as indicated on the Bond 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.
9
(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.
Section
2.03 Execution
and Authentication.
If the
Bonds are certificated, the Bonds shall be signed on behalf of the
Company by an authorized signatory. 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 an authorized
signatory, notwithstanding the fact that at the time the Bonds
shall be authenticated and delivered or disposed of such Person
shall have ceased to be an authorized signatory of the Company. 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 an authorized signatory of the Company and the Trustee in
accordance with such written order shall authenticate and deliver
such Bonds.
Prior
to the initial issuance of any Bonds, in accepting the additional
responsibilities under this Indenture in relation to such Bonds and
any Bonds to be issued thereafter, the Trustee shall be entitled to
receive (i) an Opinion of Counsel to the Issuer stating that (a)
the Company is permitted by law to enter into this Indenture, (b)
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 with the SEC on __________, 2020 as
amended, all SEC requirements, and other applicable laws and
regulations, and (3) that all Bonds, when issued by the Company and
if applicable, authenticated by the Trustee 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 (ii) a Manager’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
Manager’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 Manager’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
Manager’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
Manager’s Certificate in authenticating the Bonds (if
applicable) 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 Bond Registrar (as defined herein), 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.
10
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose 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
Bond Registrar 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 an authorized
signatory of the Company (the “Bond Registrar”). The
initial Bond Registrar is UMB Bank, n.a. Upon surrender for
transfer of any certificated Bond at the office or agency of the
Bond Registrar or upon receipt of the written request of the
registered holder of any uncertificated Bonds together with all
documentation required by law or a reasonably requested by 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 uncertificated and
certificated Bonds presented or surrendered for exchange or
registration of transfer (or with respect to uncertificated Bonds,
requested to be transferred), 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 Bond Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in
writing.
For the
avoidance of doubt, in purchasing any uncertificated Bonds, the
bondholders of such uncertificated Bonds and the Company expressly
acknowledge and agree that the transfer requirements with respect
to certificated Bonds may be imposed for the transfer of any
uncertificated Bonds and the transfer of any uncertificated Bonds
shall be in accordance with any SEC regulations or other applicable
laws, if any.
(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 or exchange any Bonds called for
redemption.
(d) The
transfer and exchange of beneficial interests in the Bonds
represented by global notes will be effected through the respective
Depositary, in accordance with the procedures of the
Depository.
(e) At
any time prior to cancellation of a Bond, if any beneficial
interest in a Bond represented by a global note is exchanged for or
transferred to a Person who will take delivery thereof in the form
of a beneficial interest in another Bond, the registered holder of
the such Bond will provide written direction to the Trustee to
reduce the principal amount represented by such Bond held by the
Depository and an endorsement will be made on such Bond by the
Trustee or by the respective Depositary to reflect such reduction;
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, the registered holder of
such Bond will provide written direction to the Trustee to increase
such other Bond and an endorsement will be made on such Bond by the
Trustee or by the respective Depositary. The Trustee may
conclusively rely upon any such written direction from the
registered holders received in accordance with this
Section.
Section
2.05
[Intentionally
Deleted]
11
Section
2.06
Mutilated,
Destroyed, Lost or Stolen Bonds.
In case
any certificated 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
certificated 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.
12
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
If the
Company issues 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.
13
Section
2.11
Book-Entry Registration for Uncertificated Bonds
Except
for certificated Bonds or bonds held with a Depositary, the Bond
Registrar shall maintain a book-entry registration and transfer
system through the establishment and maintenance of the Bond
Register for the benefit of Bondholders as the sole method of
recording the ownership and transfer of ownership interests in such
Bonds. The registered owners established by the Bond Registrar in
connection with the purchase or transfer of the Bonds shall be
deemed to be the Bondholders of the Bonds outstanding for all
purposes under this Indenture. The Company (or its duly authorized
Agent) shall promptly notify the Bond Registrar of the acceptance
of a subscriber’s purchase of a Bond and, upon receipt of
such notice, the Bond Registrar shall establish an account for such
Bond by recording a credit to its book-entry registration and
transfer system to the account of the related Bondholder for the
principal amount of such Bond owned by such Bondholder and issue a
confirmation to the Bondholder, with a copy being delivered to the
Trustee, on behalf of the Company. The Bond Registrar shall make
appropriate credit and debit entries within each account to record
all of the applicable actions under this Indenture that relate to
the ownership of the related Bonds and issue confirmations to the
related Bondholders as set forth herein, with copies being
delivered to the Trustee, on behalf of the Company. For example,
the total amount of any principal or interest due and payable to
the Bondholders of the accounts maintained by the Bond Registrar as
provided in this Indenture shall be credited to such accounts by
the Bond Registrar within the time frames provided in this
Indenture, and the amount of any payments of principal and/or
interest distributed to the Bondholders of the accounts as provided
in this Indenture shall be debited to such accounts by the Bond
Registrar. The Trustee may review the book-entry registration and
transfer system as it deems necessary to ensure the Bond
Registrar’s compliance with the terms of the
Indenture.
Section
2.12
CUSIP Numbers
The
Company may obtain and use one or more CUSIP numbers for the Bonds
(if then generally in use) and may also obtain and use different
CUSIP numbers for Bonds of the same class or series that have
different issuance dates, Maturity Dates or interest rates. If
CUSIP numbers are so obtained, the Trustee shall use CUSIP numbers
in notices of redemption or purchase as a convenience to
Bondholders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers
either as printed on the Bonds or as contained in any notice of a
redemption or purchase, and any such redemption or purchase shall
not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the CUSIP
numbers.
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 and at the redemption prices set forth in
this Article III and on the Bonds, together with accrued and unpaid
interest to the redemption date. 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 ten (10) days and
not more than sixty (60) 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 shall
immediately provide written notice to the Trustee and Bondholders
and 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.
14
Section
3.02
Notice
of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Bonds in accordance with
the 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 Manager’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
Grand Rapids, Michigan, 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 the Bonds are to be redeemed, the Company shall give
the Trustee at least fifteen (15) 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 an authorized signatory of the Company, 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).
15
(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.
Section
3.04
Redemption upon Death or Disability or Bankruptcy
(a) Subject to
subsection (b) below, within 60 days of the death, Total Permanent
Disability or Bankruptcy of a holder who is a natural person or a
Person who beneficially holds Bonds represented by a global note (a
“Holder Redemption Event”), the estate of such Person,
such Person, or legal representative of such Person may require the
Company to repurchase, in whole but not in part, without penalty,
the Bonds held or beneficially held by such Person (including Bonds
of such Person held or beneficially held in his or her individual
retirement accounts), as the case may be, by delivering to the
Company a Repurchase Request; provided, however, that in the case
of a Repurchase Request by a Person who beneficially holds
represented by a global note, such Repurchase Request shall be
valid only if delivered through the Depositary, in its capacity as
the registered holder of the global note with respect to which such
beneficial holder holds his or her beneficial interest in a
Bond.
Any
Repurchase Request shall specify the particular Holder Redemption
Event giving rise to the right of the holder or beneficial holder
to have his or her Securities or beneficial interest in a global
note repurchased by the Company. If a Bond or beneficial interest
in a global note is held jointly by natural persons who are legally
married, then a Repurchase Request may be made by (i) the surviving
holder or beneficial holder upon the occurrence of a Holder
Redemption Event arising by virtue of a death, or (ii) the disabled
or bankrupt holder or beneficial holder (or a legal representative)
upon the occurrence of a Holder Redemption Event arising by virtue
of a Total Permanent Disability or Bankruptcy. In the event a Bond
or beneficial interest in a global note is held together by two or
more natural persons that are not legally married (regardless of
whether held as joint tenants, co-tenants or otherwise), neither of
these persons shall have the right to request that the Company
repurchase such Bond or beneficial interest in a global note unless
a Holder Redemption Event has occurred for all such co-holders or
co-beneficial holders of such Bond. A holder or beneficial holder
that is not an individual natural person does not have the right to
request repurchase under this Section.
(b) Upon
receipt of a Repurchase Request under subsection (a) above, the
Company shall designate a date for the repurchase of such Security
(the “Repurchase Date”) and notify the Trustee of
such Repurchase Date, upon the Company’s receipt of the facts
or certifications establishing to the reasonable satisfaction of
the Company the occurrence of a Holder Redemption Event. The
Company shall have 90 days from the date such notice is provided to
set the Repurchase Date which shall be the last day of the
corresponding quarterly period. Within 25 days following the
Repurchase Date, the Company shall pay the Repurchase Price to the
Paying Agent for payment to the holder, or the estate of the
holder, in accordance with the terms of the Bond being repurchased
and the Paying Agent shall pay out such Repurchase Price upon the
surrender of the Bond to the Trustee. No interest shall accrue on a
Bond to be repurchased under this Section for any period of time on
or after the Repurchase Date for such Bond, provided that the
Company has timely tendered the Repurchase Price to the Paying
Agent.
16
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), interest and any other amounts
due on the Bonds at the time and place and in the manner provided
herein and established with respect to such Bonds.
Section
4.02
Maintenance
of Office or Agency.
So long
as the Bonds remain Outstanding, the Company agrees to cause to be
maintained an office of the Bond Registrar, where (i) Bonds
may be presented for payment, (ii) Bonds may be presented as herein
above authorized for registration of transfer and exchange, and an
office of the Company where 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 an
authorized signatory of the Company and delivered to the Trustee,
designate some other office or agency in the City of Grand Rapids,
Michigan for such purposes or any of them.
Section
4.03
Paying
Agents.
(a) The
Company hereby appoints the UMB Bank, n.a. 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, 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.
17
(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.
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, in either case
where the Company is not the survivor of such transaction, 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
Debt
Limit.
The
Company will not, directly or indirectly through Subsidiaries,
incur Indebtedness that will result in the Company’s total
Indebtedness, exclusive of (i) the principal owed on the
Outstanding Bonds and (ii) any financing secured by a first
mortgage lien on any real estate acquired by the Company, exceeding
49% of the value of the Company Assets.
Section
4.07
[Intentionally
Deleted]
Section
4.08
Liens.
The
Company will not allow or permit a Lien on any Company Assets
senior to that of the most senior security interest of the
Bondholders under the Collateral Documents without the approval or
permission of the holders of at least a majority in principal
amount of the Bonds at the time Outstanding by execution of an
intercreditor agreement between the Trustee, Company and any such
creditor in a form satisfactory to the holders of at least a
majority in principal amount of the Bonds at the time
Outstanding.
Section
4.09
Payment
of Taxes and Other Claims.
The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent: (i) all taxes,
assessments and governmental charges levied or imposed upon us or
upon our income, profits or Company Assets; and (ii) all
lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon any Company Asset; provided,
however, that we will not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good
faith by appropriate proceedings or for which we have set apart and
maintain an adequate reserve.
18
Section
4.10
Further Assurances; Recording
The
Company is, simultaneous with the execution of this Indenture,
executing the Pledge and Security Agreement to pledge, assign and
grant to the Trustee, on behalf of the Bondholders, a security
interest in all of the Company’s right, title and interest,
whether now owned or hereafter acquired, in and to the Collateral
(as defined in the Pledge and Security Agreement).
The
Bondholders, in purchasing the Bonds, hereby authorize and direct
the Trustee to enter into the Pledge and Security
Agreement.
The
Company will cause this instrument and all supplemental indentures
and other instruments of further assurance and other security
documents, including all financing statements covering security
interests in personal property, to be promptly recorded,
registered, and filed, and will execute and file such financing
statements and continuation statements, and the Company will cause
to be kept recorded, registered, and filed, and, when necessary and
as requested by the Company, to re-record, re-register, and
re-file, the same, all in such manner and in such places as may be
required by law fully to preserve and protect the rights of the
Bondholders and the Trustee. The Trustee shall not be responsible
for the sufficiency of accuracy of any financing statements
initially filed to perfect security interests granted under this
Indenture, the Pledge and Security Agreement or any supplemental
indentures nor for the maintenance or continuation of such
financing statements. The Company shall be responsible for the
costs incurred by the Company in the preparation and filing of all
continuation statements hereunder.
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 at
such times as the Trustee may request in writing within 30 days
after the receipt by the Company of any such request, a list of the
names and addresses of the registered holders of the Bonds as of a
date not more than 15 days prior to the time such list is furnished
of the registered owners; provided, however, that 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.
19
Section
5.03
Reports
by the Company.
(a)
The Company shall
provide to the Trustee:
(1) within 45 days
after filing with the SEC, paper copies or, if such documents are
readily available on the Commission’s website, notification
of the availability of, the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations
prescribe) that the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act or as otherwise
required by the Securities Act or by rule or regulation of the
Commission; and
(2) so long as not
contrary to the then-current recommendations of the American
Institute of Certified Public Accountants, annual financial
statements delivered pursuant to clause (i) above shall be
accompanied by a written statement of the Company’s
independent public accountants to the effect that, in making the
examination necessary for certification of such financial
statements, nothing has come to their attention which would lead
them to believe that the Company has violated the provisions of
Section 4.01 of this Indenture or, if any such violation has
occurred, specifying the nature and period of existence thereof, it
being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of
any such violation.
(b) The Company, or
such other entity as the Company shall designate as Bond Registrar,
shall provide the Trustee at intervals of not more than six months
with management reports providing the Trustee with such information
regarding the accounts maintained by the Company for the benefit of
the Bondholders as the Trustee may reasonably request, which
information shall include at least the following for the relevant
time interval from the date of the immediately preceding report:
(i) the outstanding balance of each account at the end of the
period; (ii) interest credited for the period; (iii) repayments,
repurchases and redemptions, if any, made during the period; and
(iv) the interest rate paid on each Bond in such account maintained
by the Bond Registrar during the period.
(c) Notwithstanding any
provision of this Indenture to the contrary, the Company shall not
have any obligation to maintain any of its securities (including
the Securities hereunder), including without limitation its common
stock, as securities registered under the Exchange Act or the
Securities Act, or as securities listed and publicly traded on any
national securities exchange.
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
agreed-to by the Trustee (at the direction of holders of at least a
majority in principal amount of the Bonds at the time Outstanding)
in accordance with the terms of any indenture supplemental hereto
shall not constitute a default in the payment of interest for this
purpose;
20
(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 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;
(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 $25,000,000.00 (before the application of any
pre-judgment interest), singly or in the aggregate for all such
final judgments or orders against any Subsidiary; or
(7) the
Company ceases conducting its business (including, for this
purpose, the business conducted by or through any direct or
indirect Subsidiaries) or liquidates all or substantially all of
its assets (meaning, for this purpose, all or substantially all of
the combined assets of the Company and its direct and indirect
Subsidiaries).
(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.
21
(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 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.
22
(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, including but not limited to exercising its rights under any
Collateral Documents, 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 the Company
Assets and may collect the moneys received from such sales,
following the payment of any indebtedness and any fees, costs or
expenses of such sales.
(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
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;
23
THIRD:
Upon written direction of the Company, to the payment of the
remainder, if any, to the Company or any other Person 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
(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) 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, execution upon the Collateral Documents, 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.
24
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.
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.
25
(b) No
provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
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
only be responsible 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 or Event of Default by the Company, or the holders 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;
26
(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 an authorized signatory thereof (unless other
evidence in respect thereof is specifically prescribed
herein);
(c) The
Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from any liability 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; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of
Default (that has not been cured or waived) to exercise such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct
of their own affairs;
(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;
(g) 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;
(h) 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;
(i) The
Trustee shall not be required to give any bond or surety in respect
of the performance of its powers or duties;
(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;
and
(k) 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 gross negligence on the part of any agent or
attorney appointed with due care by it hereunder.
27
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, adequacy or
sufficiency of this Indenture, of the Bonds and Collateral
Documents.
(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.
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, all moneys received by the
Trustee shall, until used or applied as herein provided, be held 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, as determined by a court of competition jurisdiction.
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, claims, damages, liability or expense incurred
without gross negligence or bad faith on the part of the Trustee,
as determined by a court of competent jurisdiction, and arising out
of or in connection with the acceptance or administration of this
trust and the performance of its
duties hereunder and the taking of any enforcement actions under
the Collateral Documents, including the costs and expenses
of defending itself against any claim of liability in the
premises.
28
(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.
(c) 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
or the Collateral Agent.
Section
7.08
Reliance
on Manager’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 Manager’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.
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
Commission, authorized under such laws to exercise corporate trust
powers, have at all times met the regulatory established
net-capital, maintain at least Five Million U.S. Dollars
($5,000,000) of fidelity insurance per account, 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 an authorized
signatory of the Company, 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.
29
(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 an authorized signatory of the
Company, 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.
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.
30
(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 Manager’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.
Section
8.02
Proof
of Execution by Xxxxxxxxxxx.
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.
31
(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.
32
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 or to correct any
scriveners error or other mistake herein or in the
Bonds;
(2) to
comply with Article X;
(3) 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 Commission 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.
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:
33
(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 or of Section 10.01, 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
Xxxxx
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 or of Section 10.01, 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 an authorized signatory 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. Prior to the execution of any
supplemental indenture or amendment to the indenture, the Trustee,
shall receive from the Company 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.
34
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.
ARTICLE X
SUCCESSOR ENTITY
Section
10.01
Company
May Consolidate, Etc.
Except
as set forth in a Manager’s Certificate, or established in
one or more indentures supplemental to this Indenture, nothing
contained in this Indenture or in any of the Bonds shall prevent
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 prevent 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; provided, however, the
Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the
survivor of such transaction), sale, conveyance, transfer or other
disposition, (a) the due and punctual payment of the principal of
(and premium, if any) and interest on all of the Bonds in
accordance with the terms thereof, according to their tenor and the
due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which
the Company shall have been merged, or by the entity which shall
have acquired such property and (b) in the event that the Bonds
then Outstanding are convertible into or exchangeable for shares of
common stock or other securities of the Company, such entity shall,
by such supplemental indenture, make provision so that the
Bondholders shall thereafter be entitled to receive upon conversion
or exchange of such Bonds the number of securities or property to
which a holder of the number of shares of common stock or other
securities of the Company deliverable upon conversion or exchange
of those Bonds would have been entitled had such conversion or
exchange occurred immediately prior to such consolidation, merger,
sale, conveyance, transfer or other disposition.
Section
10.02
Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Bonds Outstanding and
the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such
successor entity shall succeed to and be substituted for the
Company with the same effect as if it had been named as the Company
herein, and thereupon the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the
Bonds.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not
in substance) may be made in the Bonds thereafter to be issued as
may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company
in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or
the acquisition by the Company, by purchase or otherwise, of all or
any part of the property of any other Person (whether or not
affiliated with the Company).
35
Section
10.03
Evidence
off Consolidation, Etc. to Trustee.
The
Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of
this Article.
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)
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;
(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 Manager’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.
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.
36
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.
37
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 an
authorized signatory 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 Red Oak Capital Group, LLC, 000 Xxxxxxx Xxxxxx XX,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 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 Manager’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
38
(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.
Section
13.08
Payments
on Business Days.
Except
as set forth in a Manager’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.]
39
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
|
a
Delaware limited liability company
By:
Name:
Its:
Authorized Signatory
UMB
BANK, N.A., as Trustee
By:
Name:
Title:
|
EXHIBIT
A
(Form of Bond)
EXHIBIT
B
(Form of Pledge and Security Agreement)