Blueprint
Exhibit 3(a)
GK INVESTMENT PROPERTY HOLDINGS II, LLC
a Delaware limited liability company
Issuer
AND
UMB Bank
Trustee
INDENTURE
Dated as of ________________
7% Bonds
TABLE OF CONTENTS(2)
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
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4
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Section 1.01
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Definitions of Terms
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4
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Section 1.02
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Rules of Construction.
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8
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Section 1.03
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Form of Documents Delivered to Trustee
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9
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ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
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9
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Section 2.01
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Form of Bonds and Trustee's Certificate.
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9
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Section 2.02
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Denominations: Provisions for Payment.
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10
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Section 2.03
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Execution and Authentication.
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11
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Section 2.04
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Registration of Transfer and Exchange.
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12
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Section 2.05
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[Intentionally deleted]
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13
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Section 2.06
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Mutilated, Destroyed, Lost or Stolen Bonds.
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13
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Section 2.07
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Cancellation.
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13
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Section 2.08
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Benefits of Indenture.
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14
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Section 2.09
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Authenticating Agent.
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14
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Section 2.10
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Global Form of Bonds
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14
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ARTICLE III REDEMPTION OF SECURITIES
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15
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Section 3.01
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Redemption.
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15
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Section 3.02
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Notice of Redemption.
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15
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Section 3.03
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Payment Upon Redemption.
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16
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ARTICLE IV COVENANTS
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16
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Section 4.01
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Payment of Principal, Premium and Interest.
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16
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Section 4.02
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Maintenance of Office or Agency.
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16
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Section 4.03
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Paying Agents.
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16
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee.
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17
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Section 4.05
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Compliance with Consolidation Provisions.
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17
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Section 4.06
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Statement by Officers as to Default.
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18
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Section 4.07
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Appraisals.
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18
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Section 4.08
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Equity-Bond Ratio.
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18
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Section 4.09
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Bond Service Obligation.
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18
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Section 4.10
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Bond Service Reserve.
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18
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ARTICLE V SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
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19
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Section 5.01
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Company to Furnish Trustee Names and Addresses of
Bondholders.
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19
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Section 5.02
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Preservation of Information; Communications With
Bondholders.
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19
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Section 5.03
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Reports by the Company.
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19
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
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20
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Section 6.01
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Event of Default.
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20
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by
Trustee.
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21
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Section 6.03
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Application of Moneys Collected.
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22
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Section 6.04
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Limitation on Suits.
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23
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
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23
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Section 6.06
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Control by Bondholders.
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23
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Section 6.07
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Undertaking to Pay Costs.
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24
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ARTICLE VII CONCERNING THE TRUSTEE
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24
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Section 7.01
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Certain Duties and Responsibilities of Trustee.
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24
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Section 7.02
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Notice of Defaults.
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25
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Section 7.03
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Certain Rights of Trustee.
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25
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Section 7.04
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Trustee Not Responsible for Recitals or Issuance or
Bonds.
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26
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Section 7.05
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May Hold Bonds.
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26
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Section 7.06
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Moneys Held in Trust.
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26
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Section 7.07
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Compensation and Reimbursement.
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27
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Section 7.08
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Reliance on Officer's Certificate.
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27
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Section 7.09
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Disqualification; Conflicting Interests.
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27
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Section 7.10
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Corporate Trustee Requires; Eligibility.
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27
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Section 7.11
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Resignation and Removal; Appointment of Successor.
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28
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Section 7.12
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Acceptance of Appointment By Successor.
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28
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Section 7.13
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Merger, Conversion, Consolidation or Succession to
Business.
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29
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ARTICLE VIII CONCERNING THE BONDHOLDERS
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29
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Section 8.01
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Evidence of Action by Bondholders.
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29
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Section 8.02
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Proof of Execution by Bondholders.
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30
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Section 8.03
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Who May be Deemed Owners.
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30
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Section 8.04
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Certain Bonds Owned by Company Disregarded.
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30
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Section 8.05
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Actions Binding on Future Bondholders.
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30
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ARTICLE IX SUPPLEMENTAL INDENTURES
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31
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Section 9.01
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Supplemental Indentures Without the Consent of
Bondholders.
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31
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Section 9.02
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Supplemental Indentures With Consent of Bondholders.
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31
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Section 9.03
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Effect of Supplemental Indentures.
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Section 9.04
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Bonds Affected by Supplemental Indentures.
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32
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Section 9.05
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Execution of Supplemental Indentures.
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32
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ARTICLE X SUCCESSOR ENTITY
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33
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Section 10.01
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Company May Consolidate, Etc.
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33
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Section 10.02
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Successor Entity Substituted.
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33
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Section 10.03
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Evidence of Consolidation, Etc. to Trustee.
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33
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ARTICLE XI SATISFACTION AND DISCHARGE
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34
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Section 11.01
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Satisfaction and Discharge.
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34
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Section 11.02
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Deposited Moneys to be Held in Trust.
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34
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Section 11.03
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Payment of Moneys Held by Paying Agents.
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34
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Section 11.04
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Repayment of Company.
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35
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Section 11.05
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Reinstatement.
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35
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ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
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35
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Section 12.01
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No Recourse.
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35
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ARTICLE XIII MISCELLANEOUS PROVISIONS
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35
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Section 13.01
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Effect on Successors and Assigns.
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35
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Section 13.02
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Actions by Successor.
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36
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Section 13.03
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Surrender of Company Powers.
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36
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Section 13.04
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Notices.
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36
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Section 13.05
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Governing Law.
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36
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Section 13.06
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Treatment of Bonds as Debt.
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36
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Section 13.07
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Compliance Certificates and Opinions
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36
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Section 13.08
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Payments on Business Days
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37
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Section 13.09
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Counterparts.
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37
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Section 13.10
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Separability.
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37
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Section 13.11
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Electronic Storage
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37
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Form of Bond
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Exhibit
A
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_____________________
(2) This Table of Contents
does not constitute part of the Indenture and shall not have any
bearing on the interpretation of any of its terms or
provisions.
INDENTURE
INDENTURE, dated as of, between GK INVESTMENT PROPERTY
HOLDINGS II, LLC, a Delaware limited liability company (the
"Company" or the “Issuer”), and UMB Bank, as trustee
(the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debt securities (hereinafter
referred to as the "Bonds"), in a maximum aggregate principal
amount of Fifty Million Dollars ($50,000,000.00) to be issued as
registered Bonds, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which
the Bonds are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW,
THEREFORE, in consideration of
the premises and the purchase of the Bonds by the holders thereof,
it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Bonds.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular.
All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference
in said Trust Indenture Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of the execution of this
instrument.
"Affiliate" as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct
or indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities, by contract or
otherwise.
“Applicable Governmental
Agency” means any of: (1)
the Social Security Administration; (2) the U.S. Office of
Personnel Management; or (3) the Veteran’s Benefits
Administration.
"Appraisal" means an appraisal by a certified MAI appraiser
commissioned by the Company, or if commissioned by a party other
than the Company, containing language permitting the Company to
rely on the appraiser's opinion of value.
"Authenticating
Agent" means an authenticating
agent with respect to the Bonds appointed by the Trustee pursuant
to Section 2.09.
"Bankruptcy
Law" means Title 11, U.S. Code,
or any similar federal or state law for the relief of
debtors.
"Bonds" means the bonds authenticated and delivered
under this Indenture.
"Bondholder", "holder of Bonds", "registered
holder", or other similar term,
means the Person or Persons in whose name or names a particular
Bond shall be registered on the books of the Company kept for that
purpose in accordance with the terms of this
Indenture.
"Bond
Register" has the meaning given
in Section 2.04.
"Bond
Registrar" has the meaning
given in Section 2.04.
"Bond Service
Obligation" means the
amount payable by the Company in principal and interest 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 Chicago, Illinois, are
authorized or obligated by law, executive order or regulation to
close.
"Cash and Cash
Equivalents" shall have the
meaning prescribed by GAAP
"Cash Coverage
Ratio" means the ratio of
Cash and Cash Equivalents maintained by the Company to the
aggregate Bond Service Obligations for a period of three (3)
months.
"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 (“NYSE”), the NYSE American, or the Nasdaq Stock
Market, or listed or quoted on an exchange or quotation system that
is a successor to the NYSE, the NYSE American or the Nasdaq Stock
Market.
"Commission" means
the United States Securities and Exchange
Commission.
"Company" means GK Investment Property Holdings II, 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.
"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 928 Grand Blvd., Kansas City, MO 64106, Attention:
Corporate Trust Department, 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.
"Deferred Interest
Payment" means a cumulative
non-compounding 1% deferred interest payment which the Company is
obligated to make to Bondholders on maturity dates of the Bonds in
such series.
"Deferred Interest Payment
Date" means the maturity date
of the Bonds in such series, the date on which Deferred Interest
Payment is due and payable upon occurrences of change of control
repurchase event or redemption at the option of the Company, or the
date in an indenture supplemental hereto as the fixed date on which
Deferred Interest Payment is due and payable.
"Depositary" means, with respect to the Bonds, DTC or
Direct Transfer, as the case may be, and any and all successors
thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of this
Indenture.
"Direct
Transfer" means Direct
Transfer LLC.
"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.
"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 initial
date for payment of interest as set forth in the applicable
Bond.
“Interest Accrual
Period” means
the period beginning on any Interest Payment Date and continuing up
to but not including the next Interest Payment Date, or if interest
has not been paid, from the date of issuance up to but not
including the Initial Interest Payment Date.
"Interest Payment
Date", means any Initial
Interest Payment Date and the fifteenth (15th)
day of any subsequent month until the Bonds have been repaid in
full or are otherwise no longer outstanding.
"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 GK
Development, Inc. dba GK Real
Estate, an Illinois corporation.
"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.
"Opinion of
Counsel" means an opinion in
writing of legal counsel, who may be an employee of or counsel for
the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the
provisions thereof.
"Original Issue Discount
Bond" means any Bond which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01.
"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; provided,
however, that in determining
whether the holders of the requisite principal amount of the
Outstanding Bonds have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action
hereunder as of any date, the principal amount of an Original Issue
Discount Bond which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as
of such date upon acceleration of the maturity thereof to such date
pursuant to Section 6.01.
"Person" means any individual, corporation, limited
liability company, partnership, joint-venture, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor
Bond" of any particular Bond
means every previous Bond evidencing all or a portion of the same
debt as that evidenced by such particular Bond; and, for the
purposes of this definition, any Bond authenticated and delivered
under Section 2.06 in lieu of a lost, destroyed or stolen Bond
shall be deemed to evidence the same debt as the lost, destroyed or
stolen Bond.
"Price to
Public" means $1,000 per
Bond.
"Property" means any real property or interest therein
owned or acquired by the Company or any Subsidiary of the
Company.
"Property
Value" means either (a) if
within two years of the Company's or its Subsidiary's acquisition
of the Property and absent a later dated Appraisal of the Property
then the gross purchase price of the Property; or (b) if on or
after the second anniversary of the acquisition of the Property by
the Company or its Subsidiary, then the appraised value of the
Property in accordance with the Appraisal required under Section
4.07 hereof.
"Property Equity
Value" means, with respect to
any Property held by the Company or a Subsidiary, the Property
Value less (1) the aggregate outstanding indebtedness secured by
such Property, (2) the aggregate unsecured debt of any Subsidiary
with a direct or indirect interest in a Property, and (3) the
aggregate debt secured by the Company's direct or indirect interest
in any Subsidiary, and, if the subject Property be held in a
Subsidiary, further multiplied by the Company's proportionate
interest in such Subsidiary; provided, however,
for purposes of this Indenture, the minimum Property Equity Value
of any Property shall be deemed to be $0.00.
“Qualifying
Disability” means, with
respect to any Bondholder or beneficial holder, a determination of
disability based upon a physical or mental condition or impairment
arising after the date such Bondholder or beneficial holder first
acquired Bonds. Any such determination of disability must be made
by the Applicable Governmental Agency responsible for reviewing the
disability retirement benefits that the applicable Bondholder or
beneficial holder could be eligible to receive.
“Redemption
Period” shall be a period
of three (3) calendar months, with Redemption Periods beginning on
March 1, June 1, September 1 and December 1 of each calendar
year.
"Responsible
Officer" when used with respect
to the Trustee means the Chairman of the Board of Directors, the
President, any Vice President, the Secretary, the Treasurer, any
trust officer, any corporate trust officer or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with
the particular subject.
"SEC" means the U.S. Securities and Exchange
Commission.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, (ii) any general partnership, limited
liability company, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner.
"Trustee" means UMB Bank, and, subject to the provisions
of Article VII, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such
Person.
"Voting Stock", as applied to stock of any Person, means
shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
Section 1.02 Rules of Construction
For
all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(2)
all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not
otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the
United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted in the
United States of America at the date of such
computation;
(4)
the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5)
the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not
both");
(6)
the masculine gender includes the feminine and the neuter;
and
(7)
references to agreements and other instruments include subsequent
amendments and supplements thereto.
Section 1.03 Form of Documents Delivered to Trustee.
In
any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several
documents.
Any
certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon
which his certificate or opinion is based is erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company, a governmental official or
officers or any other Person or Persons, stating that the
information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate,
opinion or representations with respect to such matters are
erroneous.
Where
any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture or any Bond,
they may, but need not, be consolidated and form one
instrument.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND
EXCHANGE OF SECURITIES
Section 2.01 Form of Bonds and Trustee's Certificate.
The Bonds and the Trustee's certificate of
authentication shall be substantially in the form
of Exhibit
A hereto. The Bonds may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange on which the Bonds may be listed, or to conform to usage.
The terms and conditions contained in the Bonds shall constitute,
and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuer and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.02 Denominations: Provisions for Payment.
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 September 16, 2019 (File No. 024-11074). Each
series of Bonds beginning with Series A will be offered for a total
of six months. Each series of Bonds will mature on the fifth
anniversary of the initial issuance date of Bonds in such series
and will bear interest at a fixed rate of seven percent (7%) per
annum payable on an Interest Payment Date. Interest payable shall
be calculated using the Interest Accrual Period immediately
preceding such Interest Payment Date, if applicable. Interest on
the Bonds will be paid monthly on the fifteenth
(15th)
day of each calendar month and the first interest payment on a Bond
will be paid on the fifteenth (15th)
day of the calendar month following the issuance of such Bond. In
addition, the Company is obligated to pay Bondholders a cumulative
non-compounding 1% Deferred Interest Payment on maturity dates of
the Bonds in such series. If the Company extends the offering, it
will offer Series E and Series F Bonds, for the first and second
six-month periods of such extension, with the maturity date of each
such series being the fifth anniversary of the initial issuance of
such series.
The principal of and the interest, including
Deferred Interest Payment, on the Bonds, as well as any premium
thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America
that at the time is legal tender for public and private debt, at
the Corporate Trust Office or agency of the
Trustee; provided,
however, that at the option of
the Company and with prior written notice to the Trustee thereof,
payment of interest, including Deferred Interest Payment, may be
made by check mailed to the address of the Person entitled thereto
as such address shall appear in the Bond Register instead of first
being deposited with the Trustee. 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. 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 Bond (or one or more Predecessor
Bonds) is registered at the close of business on the regular record
date for such interest installment. In the event that any Bond is
called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and
prior to such Interest Payment Date, interest on such Bond will be
paid upon presentation and surrender of such Bond as provided in
Section 3.03. Notwithstanding any other provisions of this
Section 2.02, payment of principal of and any interest, including
Deferred Interest Payment, on the Bonds shall be made to
a Depositary or its nominee, as the case may be, as the sole
registered owner and holder of the Bonds for all purposes
under this Indenture.
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 regular 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
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Bondholder at his or
her address as it appears in the Bond Register (as hereinafter
defined), not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Bonds (or their respective Predecessor Bonds) are registered on
such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Bonds
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Bonds may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee. The term “regular record
date” as used in this Section with respect to an Interest
Payment Date shall mean the first day of the month in which an
Interest Payment Date shall occur, whether or not such date is a
Business Day. 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.
The
Deferred Interest Payment on any Bond that is payable, and is
punctually paid or duly provided for, on its Deferred Interest
Payment Date shall be paid to the Person in whose name said Bond
(or one or more Predecessor Bonds) is registered at the close of
business on the record date for such Deferred Interest Payment. In
the event that any Bond is called for early redemption by
Bondholders, no Deferred Interest Payment will be made on such
Bond.
Any
Deferred Interest Payment on any Bond that is payable, but is not
punctually paid or duly provided for, on any Deferred Interest
Payment Date (herein called "Defaulted Deferred 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 Deferred 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 Deferred 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 Deferred
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Deferred Interest proposed to be paid on each such Bond and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Deferred 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 Deferred Interest as in this
clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Deferred 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 Deferred 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 Deferred Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Deferred
Interest shall be paid to the Persons in whose names such Bonds (or
their respective Predecessor Bonds) are registered on such special
record date.
(2)
The Company may make payment of any Defaulted Deferred 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.
Section 2.03 Execution and Authentication.
The
Bonds shall be signed on behalf of the Company by its Manager under
its seal attested by a notary public. Signatures may be in the form
of a manual or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a Manager,
notwithstanding the fact that at the time the Bonds shall be
authenticated and delivered or disposed of such Person shall have
ceased to be the Manager of the Company. The seal of the Company
may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Bonds.
The Bonds may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. A Bond shall not be
valid until authenticated manually by an authorized signatory of
the Trustee, or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Bond so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture. At any time and from
time to time after the execution and delivery of this Indenture,
the Company may deliver Bonds executed by the Company to the
Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Bonds, signed
by its Manager, and the Trustee in accordance with such written
order shall authenticate and deliver such Bonds.
Prior
to the initial issuance of the Bonds, in authenticating such Bonds
and accepting the additional responsibilities under this Indenture
in relation to such Bonds, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that (1) the Company is
permitted by law to enter into this Indenture, (2) the form and
terms of the Bonds have been established in conformity with the
provisions of this Indenture, the Regulation A Offering Statement
on Form 1-A filed on September 16, 2019 (File No. 024-11074), all
SEC requirements, and other applicable laws and regulations, and
(3) that such Bonds, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to any Bankruptcy Law or other
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at
law); and a 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 and
accepting the responsibility under this Indenture. The Trustee
shall not be required to authenticate such Bonds if the issue of
such Bonds pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Bonds and this Indenture or
otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.04 Registration of Transfer and Exchange.
(a)
Bonds may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the City of
Barrington, Illinois, or such other location designated by the
Company, for other Bonds of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Bonds so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Bond or Bonds that the Bondholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the City of Barrington,
Illinois, or such other location designated by the Company, a
register or registers (herein referred to as the "Bond Register")
in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Bonds and the transfers
of Bonds as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Bonds and transfer of Bonds as
herein provided shall be appointed as authorized by the Manager of
the Company (the "Bond Registrar"). Upon surrender for transfer of
any Bond at the office or agency of the Company designated for such
purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the
transferee or transferees a new Bond as the Bond presented for a
like aggregate principal amount. All Bonds presented or surrendered
for exchange or registration of transfer, as provided in this
Section, shall be accompanied (if so required by the Company or the
Bond Registrar) by a written instrument or instruments of transfer,
in form satisfactory to the Company or the Bond Registrar, duly
executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c)
No service charge shall be made for any exchange or registration of
transfer of Bonds, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.04,
Section 3.03(b) and Section 9.04 not involving any transfer. The
Company shall not be required (i) to issue, exchange or register
the transfer of any Bonds during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Bonds and ending at the
close of business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Bonds called for
redemption.
(d) The
transfer and exchange of beneficial interests in the Bonds will be
effected through the respective Depositary, in accordance with the
provisions of this Indenture.
If
applicable, upon notification from the Depositary, the Trustee
shall adjust the principal amount of the relevant Bond(s) pursuant
to Section 2.04(e) in accordance with the procedures of the
Depositary.
(e) At
any time prior to cancellation of a Bond, if any beneficial
interest in such a Bond is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest
in another Bond issued under this Indenture, the principal amount
represented by such Bond will be reduced accordingly in accordance
with the procedures of the Depositary; and if the beneficial
interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in
another Bond issued under this Indenture, such other Bond will be
increased accordingly in accordance with the procedures of the
Depositary.
Section 2.05 [Intentionally deleted]
Section 2.06 Mutilated, Destroyed, Lost or Stolen
Bonds.
In
case any Bond shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company's request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Bond bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Bond, or in lieu of and in
substitution for the Bond so destroyed, lost or stolen. In every
case the applicant for a substituted Bond shall furnish to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Bond and of the
ownership thereof. The Trustee may authenticate any such
substituted Bond and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of
any substituted Bond, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case
any Bond that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Bond, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated
Bond) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee
of the destruction, loss or theft of such Bond and of the ownership
thereof. Every replacement Bond issued pursuant to the provisions
of this Section shall constitute an additional contractual
obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Bond shall be found at any time, or be enforceable
by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Bonds
duly issued hereunder. All Bonds shall be held and owned upon the
express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Bonds, and shall preclude (to the extent lawful) any and
all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.07 Cancellation.
All
Bonds surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or
any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no
Bonds shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. The
Trustee may dispose of canceled Bonds in accordance with its
standard procedures and deliver a certificate of disposition to the
Company. If the Company shall otherwise acquire any of the Bonds,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Bonds unless
and until the same are delivered to the Trustee for
cancellation.
Section 2.08 Benefits of Indenture.
Nothing
in this Indenture or in the Bonds, express or implied, shall give
or be construed to give to any Person, other than the parties
hereto and the holders of the Bonds any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Bonds.
Section 2.09 Authenticating Agent.
So
long as any of the Bonds remain Outstanding there may be an
Authenticating Agent for any or all Bonds which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Bonds
issued upon exchange, transfer or partial redemption thereof, and
Bonds so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately. Any Authenticating
Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the
agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Any
corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating
Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating
Agent.
Section 2.10 Global Form of Bonds
The
Company shall issue the Bonds in global form. The Company may issue
a Bond only to a Depositary. A Depositary may transfer a Bond only
to its nominee or to a successor Depositary. A Bond shall represent
the amount of the securities specified therein. A Bond may have
variations that the Depositary requires or that the Company
considers appropriate for such a security.
Prior
to due presentment of the Bond(s) for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name such Bond(s) is registered as
the owner of such Bonds for the purpose of receiving payment of
principal of and interest on such Bond(s) and for all other
purposes whatsoever, whether or not such Bond(s) be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the
contrary.
Beneficial
owners of part or all of a Bond are subject to the rules of the
Depositary as in effect from time to time. The Company, the Trustee
and any agent of the Company or Trustee shall not be responsible
for any acts or omissions of a Depositary, for any Depositary
records of beneficial ownership interests or for any transactions
between the Depositary and beneficial owners.
ARTICLE III
REDEMPTION OF SECURITIES
Section 3.01 Redemption
The
Bonds may be redeemed, in whole or from time to time in part,
subject to the conditions set forth in this Article III or in the
applicable Bond. If the Company elects to redeem Bonds pursuant to
this Article III, it shall notify the Trustee in writing of the
redemption date, the redemption price and the principal amount of
Bonds to be redeemed. The Company shall give notice of redemption
to the Trustee not less than thirty (30) days before the redemption
date, together with such documentation and records as shall enable
the Trustee to select the Bonds to be redeemed. If a Change of
Control Repurchase Event occurs while any Bonds remain outstanding,
the Company or Trustee shall make an offer to each Bondholder to
repurchase all or any amount of each Bondholder's Bonds at the
redemption price set forth on the Bond.
Section 3.02 Notice of Redemption.
(a) In
case the Company shall desire to exercise any right to redeem all
or, as the case may be, a portion of the Bonds in accordance with
any right reserved so to do, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Bonds
to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than thirty (30) 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
Barrington, Illinois, 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 thirty (30) days' notice (unless a shorter
period is satisfactory to the Trustee) in advance of the date fixed
for redemption as to the aggregate principal amount of Bonds to be
redeemed, and thereupon the Trustee shall select in a manner that
complies with the requirements, if any, of any applicable stock
exchange or which the Bonds are listed and that the Trustee deems
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Bonds of a denomination larger than $1,000, the
Bonds to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Bonds to be redeemed, in
whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by its
Manager, instruct the Trustee or any paying agent to call all or
any part of the Bonds for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to
be in the name of the Company or its own name as the Trustee or
such paying agent as it may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such
paying agent, the Company shall deliver or cause to be delivered
to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Bond Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this
Section.
Section 3.03 Payment Upon Redemption
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Bonds or portions of Bonds to be redeemed
specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for
redemption and interest on such Bonds or portions of Bonds shall
cease to accrue on and after the date fixed for redemption, unless
the Company shall default in the payment of such redemption price
and accrued interest with respect to any such Bond or portion
thereof. On presentation and surrender of such Bonds on or after
the date fixed for redemption at the place of payment specified in
the notice, said Bonds shall be paid and redeemed at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption (but if the date fixed for redemption is
an Interest Payment Date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section
2.02).
(b)
Upon presentation of any Bond that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
the office or agency where the Bond is presented shall deliver to
the holder thereof, at the expense of the Company, a new Bond of
authorized denominations in principal amount equal to the
unredeemed portion of the Bond so presented.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Principal, Premium and
Interest.
The
Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest, including Deferred
Interest Payment, 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
maintain an office or agency in the City of Barrington, Illinois,
or such other location designated by the Company, and at such other
location or locations as may be designated as provided in this
Section 4.02, where (i) Bonds may be presented for payment,
(ii) Bonds may be presented as herein above authorized for
registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Bonds and this
Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by
written notice signed by its Manager and delivered to the Trustee,
designate some other office or agency in the City of Barrington,
Illinois for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Bonds may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided,
however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the City of
Barrington, Illinois, or such other location designated by the
Company for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or
agency.
Section 4.03 Paying Agents.
(a)
The Company hereby appoints the Trustee as the initial paying
agent. If the Company shall appoint one or more paying agents for
the Bonds, other than the Trustee, the Company will cause each such
paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest, including
Deferred Interest Payment, 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, including Deferred
Interest Payment, 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, including Deferred Interest
Payment, 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, including
Deferred Interest Payment, 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, including Deferred Interest Payment, deposit with the
paying agent a sum sufficient to pay the principal (and premium, if
any) or interest, including Deferred Interest Payment, so becoming
due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, including Deferred
Interest Payment, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of this action or failure
so to act.
(c)
Notwithstanding anything in this Section to the
contrary,
(1)
the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and
(2)
the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with
respect to such money.
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 Statement by Officers as to Default.
The
Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a Certificate, stating whether
or not to the best knowledge of the signer thereof the Company is
in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and,
if the Company shall be in default, specifying all such defaults and the nature and status thereof of
which such signer may have knowledge.
Section 4.07 Appraisals
While
any of the Bonds remain Outstanding, the Company shall commission
or otherwise obtain an Appraisal of each Property owned by the
Company or a Subsidiary of the Company to be dated on or before the
second anniversary of the acquisition of such Property, and then on
or before each subsequent anniversary of the prior Appraisal. The
Trustee shall have no obligation to monitor the Company's
compliance with this Section 4.07.
Section 4.08 Equity-Bond Ratio.
While
any of the Bonds remain outstanding, the sum of the aggregate
Property Equity Values plus any Cash or Cash Equivalents then held
by the Company shall be equal to or exceed seventy percent (70%) of
aggregate principal amount of the Outstanding Bonds. Except as
otherwise provided in this Indenture, as long as the Company
complies with the provisions of Section 4.08 and Section 4.11 of
this Agreement, the Company and any Subsidiary shall be entitled to
incur additional indebtedness on the Properties. The Trustee shall
have no obligation to monitor the Company's compliance with this
Section 4.08.
Section 4.09 Bond Service Obligation.
While
any Bonds remain outstanding, the Company shall maintain a Cash
Coverage Ratio equal to at least 120%. The Company shall make
monthly reports of its Cash and Cash Equivalents to the Trustee to
ensure compliance with this Section 4.09. The Trustee shall have no
obligation to monitor the Company's compliance with this Section
4.09.
Section 4.10 Bond Service Reserve.
The Company shall deposit with the Trustee,
and Trustee shall maintain in a separate reserve account for each
series of Bonds, seven percent (7%) of
the gross proceeds from the sale of Bonds in each series pursuant
to this Indenture. Each series of Bonds shall have a separate
reserve account. Any such reserves shall be held for a period of
one (1) year following the initial issuance date of Bonds in
the applicable series and except as otherwise set forth herein
during such period shall be available to the Trustee solely
for the payment of the Company’s Bond Service Obligations
relating to the particular series of Bonds from which the reserves
were funded. Provided no Event of Default has occurred and is
continuing, following the expiration of one (1) year from the date
of initial issuance of Bonds in a series, the Trustee shall release
and transmit to the Company, upon written direction of the Company,
all amounts remaining in the applicable reserve account, subject to
the payment of fees and costs related to the maintenance of the
reserve account. If an Event of Default has occurred and is
continuing, the Trustee shall apply any amounts in the Bond Service
Reserve in accordance with Section 6.03.
Section 4.11 Secured Indebtedness Restriction.
The
Company shall not incur any indebtedness that would be senior to
the Bonds, and none of the Company’s direct or indirect
Subsidiaries is permitted to incur any indebtedness other than
indebtedness secured by a first position lien on real property
acquired by the Company or one of its Subsidiaries.
ARTICLE V
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND
THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of
Bondholders.
The
Company will furnish or cause to be furnished to the
Trustee
(1)
not more than 15 days after each regular record date (as defined in
Section 2.02) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of the Bonds as
of such regular record date, provided that the Company shall not be
obligated to furnish or cause to furnish such list at any time that
the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company and
(2)
at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that, in
either case, no such list need be furnished for any Bonds for which
the Trustee shall be the Bond Registrar.
Section 5.02 Preservation of Information; Communications With
Bondholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Bonds contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of
holders of Bonds received by the Trustee in its capacity as Bond
Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c)
Bondholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Bondholders with respect to their
rights under this Indenture or under the Bonds.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee, (i) monthly
reports of its cash and cash equivalents; (ii) annually, within one
hundred twenty (120) days following December 31st,
a written statement certifying that to the knowledge of the
Company's officers the Company is in compliance with this
Indenture, or specifying any Event of Default hereunder; and (iii)
within 15 days after the Company files the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company files with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange
Act; provided,
however, the Company shall not
be required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the
Commission; and provided
further, so long as such
filings by the Company are available on the Commission's Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), such filings
shall be deemed to have been filed with the Trustee for purposes of
this Section 5.03 without any further action required by the
Company, provided,
however, that the Trustee shall
have no obligation whatsoever to determine if such filing has been
so made. The Company will also comply with the other provisions of
Section 314(a) of the Trust Indenture Act.
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,
including Deferred Interest Payment, upon any of the Bonds as and
when the same shall become due and payable, and continuance of such
default for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto
shall not constitute a default in the payment of interest for this
purpose;
(2)
the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Bonds as and when the same shall
become due and payable, and continuance of such default for a
period of 30 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; or
(6)
entry by any court having jurisdiction over the Company of a final
and non-appealable judgment or order for the payment of money in
excess of $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 Significant
Subsidiary.
(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, including Deferred Interest Payment, on all the
Bonds to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable.
(c)
At any time after the principal of the Bonds shall have been so
declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate
principal amount of the Bonds then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1)
the Company has paid or deposited with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Bonds and
the principal of (and premium, if any, on) any and all Bonds that
shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Bonds to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.07, and
(2)
any and all Events of Default under the Indenture, other than the
nonpayment of principal on Bonds that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06. No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right consequent
thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with
respect to Bonds under this Indenture and such proceedings shall
have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to
any determination in such proceedings, the Company, and the Trustee
shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and
the Trustee shall continue as though no such proceedings had been
taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a)
The Company covenants that
(1)
in case it shall default in the payment of any installment of
interest, including Deferred Interest Payment, 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 30 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 30
days,
then,
upon demand of the Trustee or the Bondholders of a majority in
aggregate principal amount of the Bonds, the Company will pay to
the Trustee, for the benefit of the holders of the Bonds, the whole
amount that then shall have been become due and payable on all such
Bonds for principal (and premium, if any) or interest, including
Deferred Interest Payment, 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, including
Deferred Interest Payment, at the rate per annum expressed in the
Bonds; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.07.
(b)
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Bonds
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or other
obligor upon the Bonds, wherever situated. In addition to any
action or proceeding at law or in equity, the Trustee shall have
the right to cause the Company to cause the sale of all Properties
then held by the Company or its Subsidiaries and may collect the
moneys received from such sales, following the payment of any
indebtedness secured by such Properties 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 shall be
applied in the following order, at the date or dates fixed by the
Trustee:
FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.07;
SECOND:
To the payment of the amounts then due and unpaid upon Bonds of for
principal (and premium, if any) and interest, including Deferred
Interest Payment, 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,
including Deferred Interest Payment, respectively;
THIRD:
Upon written direction of the Company, to the payment of the
remainder, if any, to the Company or any other Person lawfully
entitled thereto as directed by the Company.
Section 6.04 Limitation on Suits.
No
holder of any Bond shall have any right by virtue or by availing of
any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1)
such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof
specifying such Event of Default, as hereinbefore
provided;
(2)
the holders of not less than a majority in aggregate principal
amount of the Bonds then Outstanding shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder;
(3)
such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby;
(4)
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such
action, suit or proceeding; and
(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, including Deferred Interest
Payment, on such Bond, as therein provided, on the respective due
dates expressed in such Bond (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any
such payment on or after such respective dates or redemption date,
shall not be impaired or affected without the consent of such
holder and by accepting a Bond hereunder it is expressly
understood, intended and covenanted by the taker and holder of
every Bond with every other such taker and holder and the Trustee,
that no one or more holders shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Bonds, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of
Bonds. For the protection and enforcement of the provisions of this
Section, each and every Bondholder and the Trustee shall be
entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a)
Except as otherwise provided in Section 2.06, all powers and
remedies given by this Article to the Trustee or to the Bondholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee
or the holders of the Bonds, by judicial proceedings, or otherwise,
to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established
with respect to such Bonds.
(b)
No delay or omission of the Trustee or of any holder of any of the
Bonds to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such
default or on acquiescence therein; and, subject to the provisions
of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Bondholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or
by the Bondholders.
Section 6.06 Control by Bondholders.
The
holders of a majority in aggregate principal amount of the Bonds at
the time Outstanding, determined in accordance with Section 8.01,
shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee;
provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the
provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee or its
counsel, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Bonds at the time Outstanding
affected thereby, determined in accordance with Section 8.01, may
on behalf of the holders of all of the Bonds waive any past default
in the performance of any of the covenants contained herein and its
consequences, except a default in the payment of the principal of
(or premium, if any) or interest, including Deferred Interest
Payment, 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, including Deferred Interest Payment, 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,
including Deferred Interest Payment, 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.
(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 be responsible only for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture;
(2)
the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3)
the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Bonds at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Bonds; and
(4)
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 7.02 Notice of Defaults.
(a)
The Trustee shall not be required to take notice or be deemed to
have notice of any Default or Event of Default hereunder, unless a
Responsible Officer of the Trustee shall be specifically notified
in writing of such default by the Company, or the Owners of at
least 25% in principal amount of all Outstanding Bonds,
and in the absence of such notice so delivered, the Bond Trustee
may conclusively assume there is no default except as
aforesaid.
(b) If
an Event of Default occurs hereunder of which the Trustee has
notice or is deemed to have notice in accordance with Section
7.02(a), the Trustee shall promptly give the holders notice of such
Event of Default; provided, however, that in the case of any Event
of Default of the character specified in clause (3) of Section
6.01(a), no such notice to holders shall be given until at least
30 days after the occurrence thereof.
Section 7.03 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b)
Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an instrument signed in
the name of the Company, by the Manager thereof (unless other
evidence in respect thereof is specifically prescribed
herein);
(c)
The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance
thereon;
(d)
The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request,
order or direction of any of the Bondholders, pursuant to the
provisions of this Indenture, unless such Bondholders shall have
offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that
may be incurred therein or thereby;
(e)
The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f)
The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Bonds (determined
as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
and
(g)
The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(h) None of the provisions of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to it against such risk or
liability is not assured to it;
(i)
In no event shall the Trustee, including its Responsible Officers,
be responsible or liable for special, indirect, or consequential
loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of
the form of action;
(j)
The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder should it act as Paying
Agent or Registrar at any time and each agent, custodian and other
person employed by the Trustee to act hereunder
(k) The
Trustee shall not be responsible for any recital herein or in the
Bonds (except with respect to the Certificate of Authentication of
the Trustee endorsed on the Bonds), or for the recording or
rerecording, filing or refiling of this Indenture or any financing
statement or security agreement in connection therewith or for the
validity of the execution by the Company of this Indenture or of
any supplemental indentures or instruments of further
assurance.
Section 7.04 Trustee Not Responsible for Recitals or Issuance or
Bonds.
(a)
The recitals contained herein and in the Bonds shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Bonds.
(c)
The Trustee shall not be accountable for the use or application by
the Company of any of the Bonds or of the proceeds of such Bonds,
or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture, or for
the use or application of any moneys received by any paying agent
other than the Trustee.
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 negligence or bad
faith. The fees, charges and expenses specified herein are for the
typical and customary services as trustee. Fees for additional or
extraordinary services not now part of the customary services
provided, such as special services during default or additional
government reporting requirements will be charged at the then
current rates for such services.
The
Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust and
the performance of its duties and the taking of any enforcement
actions hereunder, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Bonds
upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of
particular Bonds. The
obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.
Section 7.08 Reliance on Officer's Certificate.
Except
as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
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
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, having a combined capital and surplus of at least One
Hundred Million U.S. Dollars ($100,000,000), and subject to
supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section
7.11.
Section 7.11 Resignation and Removal; Appointment of
Successor.
(a)
The Trustee or any successor hereafter appointed, may at any time
resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage
prepaid, to the Bondholders, as their names and addresses appear
upon the Bond Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Manager, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Bondholder who
has been a bona fide holder of a Bond or Bonds for at least six
months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall
occur:
(1)
the Trustee shall fail to comply with the provisions of Section
7.09 after written request therefor by the Company or by any
Bondholder who has been a bona fide holder of a Bond or Bonds for
at least six months; or
(2)
the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.10 and shall fail to resign after written
request therefor by the Company or by any such Bondholder;
or
(3)
the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall
be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect
to all Bonds and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Manager, 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.
(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 Bondholders.
Subject
to the provisions of Section 7.01, proof of the execution of any
instrument by a Bondholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any
Person of any of the Bonds shall be sufficient if made in the
following manner:
(a)
The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Bonds shall be proved by the Bond Register of such
Bonds or by a certificate of the Bond Registrar
thereof.
(c)
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem
necessary.
Section 8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Bond,
the Company, the Trustee, any paying agent and any Bond Registrar
may deem and treat the Person in whose name such Bond shall be
registered upon the books of the Company as the absolute owner of
such Bond (whether or not such Bond shall be overdue and
notwithstanding any notice of ownership or writing thereon made by
anyone other than the Bond Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any)
and (subject to Section 2.02) interest on such Bond and for all
other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Bond Registrar shall be affected by any notice
to the contrary.
Section 8.04 Certain Bonds Owned by Company
Disregarded.
In
determining whether the holders of the requisite aggregate
principal amount of Bonds have concurred in any direction, consent
of waiver under this Indenture, the Bonds that are owned by the
Company or any other obligor or by any Person directly or
indirectly controlling or controlled by or under common control
with the Company or any other obligor shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver, only Bonds that the Trustee actually knows are
so owned shall be so disregarded. The Bonds so owned that have been
pledged in good faith may be regarded as Outstanding for the
purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Bonds and that the pledgee is not a Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the
Trustee.
Section 8.05 Actions Binding on Future Bondholders.
At
any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount
of the Bonds specified in this Indenture in connection with such
action, any holder of a Bond that is shown by the evidence to be
included in the Bonds the holders of which have consented to such
action may, by filing written notice with the Trustee, and upon
proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Bond. Except as aforesaid any such action
taken by the holder of any Bond shall be conclusive and binding
upon such holder and upon all future holders and owners of such
Bond, and of any Bond issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Bond. Any
action taken by the holders of the majority or percentage in
aggregate principal amount of the Bonds specified in this Indenture
in connection with such action shall be conclusively binding upon
the Company, the Trustee and the holders of all the
Bonds.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of
Bondholders.
In
addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto,
without the consent of the Bondholders, for one or more of the
following purposes:
(1)
to cure any ambiguity, defect, or inconsistency herein or in the
Bonds;
(2)
to 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 Trustee 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:
(1)
extend the maturity of the principal of, or any installment of
principal of or interest, including Deferred Interest Payment, 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 the rate of Deferred Interest Payment or extend the time
of Deferred Interest Payment thereon, or reduce any premium payable
upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Bond or 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 Bonds Affected by Supplemental
Indentures.
Bonds
affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the
provisions of this Article 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 the Manager of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Bonds then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon
the request of the Company and upon the filing with the Trustee of
evidence of the consent of Bondholders required to consent thereto
as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in
its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, may receive a Manager's Certificate or an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the
execution thereof.
Promptly
after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section,
the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such
supplemental indenture, to the Bondholders as their names and
addresses appear upon the Bond Register. Any failure of the Trustee
to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
ARTICLE X
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except
as set forth in an Officer'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, including Deferred Interest
Payment, 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).
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)
either (A) all Bonds theretofore authenticated and delivered (other
than (i) any Bonds that shall have been destroyed, lost or stolen
and that shall have been replaced or paid as provided in Section
2.06 and (ii) Bonds for whose payment money or noncallable
Governmental Obligations have theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 11.05) have been delivered to the Trustee for cancellation;
or (B) all Bonds not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii) will by their
terms become due and payable within one year or (iii) are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds in trust for the purpose (x) moneys in an
amount, or (y) noncallable Governmental Obligations the scheduled
principal of and interest on which in accordance with their terms
will provide, not later than the due date of any payment, money in
an amount, or (z) a combination thereof, sufficient, in the case of
(y) or (z), in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, at maturity
or upon redemption, all Bonds not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any)
and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the
Company has delivered to the Trustee a 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.
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, including Deferred Interest Payment, 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, including Deferred Interest Payment, 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, including Deferred Interest
Payment, 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.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the
covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act
or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the
Company.
Section 13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its
Manager 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 GK Development, Inc. dba GK Real
Estate, 257 E. Main St., Ste 200, Barrington, IL 60010. 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
(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.]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
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GK INVESTMENT PROPERTY HOLDINGS II, LLC
a Delaware limited liability company
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By:
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GK Development, Inc. dba GK Real
Estate
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Its:
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Manager
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By:
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Name:
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Garo Kholamian
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Its:
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President and Sole Director
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UMB BANK, as Trustee
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By:
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Name:
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Title:
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EXHIBIT A
(Form of Bond)