Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Prosper Marketplace, Inc. S-1 Amendment 5 HTML 1.90M
9: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 192K
2: EX-4.2 Form of Indenture S-1 Amendment 5 HTML 293K
3: EX-5.1 Morrison Foerster Securities Opinion HTML 25K
4: EX-8.1 Morrison Foerster Tax Opinion HTML 14K
5: EX-10.1 Borrower Registration Agreement S-1 Amendment 5 HTML 75K
6: EX-10.2 Lender Registration Agreement S-1 Amendment 5 HTML 95K
7: EX-23.1 Consent of Independent CPA S-1 Amendment 5 HTML 7K
8: EX-25.1 Statement of Eligibility Under Trust Indenture Act HTML 99K
of 1939
EXHIBIT
A - FORM OF BORROWER PAYMENT DEPENDENT NOTE SECURITY
A-1
iii
INDENTURE
dated as of June 15, 2009, by
and between Prosper Marketplace, Inc., a Delaware corporation (“Company”), and Wells
Fargo Bank, National Association, a national banking association incorporated
and existing under the laws of the United States of America, as trustee (“Trustee”).
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of special limited obligations of the
Company referred to as Borrower Payment Dependent Notes (herein, individually
and collectively, the “Securities”), to be
issued in series as in this Indenture provided.
For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and ratable
benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.1 DEFINITIONS.
“ACH System” means the
Automated Clearing House system of the U.S. Federal Reserve Board or a successor
system providing electronic funds transfers between banks.
“Affiliate” of any
specified person means any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
person. For the purposes of this definition, “Control” when used with
respect to any specified person means the power to direct or cause the direction
of the management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms “Controlling” and “Controlled” have meanings correlative to the
foregoing.
“Board of Directors”
means the board of directors of the Company or any committee of such board
authorized with respect to any matter to exercise the powers of the Board of
Directors of the Company.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
“Borrower Loan” means
a direct loan originated through the Company’s platform on its websitewww.prosper.com or any successor website, with a borrower that is an
individual.
“Borrower Loan Net
Payment,” means, with respect to each Borrower Loan, all Borrower Loan
Payments net of Other Payments and Charges.
“Borrower Loan
Payment,” means, with respect to each Borrower Loan, all amounts received
by the Company, and not reversed through the ACH System or by virtue of checks
returned unpaid due to insufficient funds or for other reasons, in connection
with the repayment of such Borrower Loan, including without limitation, all
payments or prepayments of principal and interest, any late fees and any amounts
received by the Company upon collection efforts.
“Business Day” means,
except as otherwise specified as contemplated by Section 2.2(c), with
respect to any Place of Payment or any other particular location referred to in
this Indenture or in the Securities, each Monday, Tuesday, Wednesday, Thursday
and Friday that is (1) not a day on which the ACH System is closed and
(2) not a day on which banking institutions are authorized or obligated by
law or executive order to close in San Francisco, California or New York, New
York.
“Capital Stock” for
any corporation means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) stock issued by that corporation.
“Company” means the
party named as the “Company” in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor.
1
“Company Request” or
“Company Order”
means a written request or order signed in the name of the Company (i) by
its Chairman of the Board, a Vice Chairman, its Chief Executive Officer, its
President or a Vice President, and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee
or, with respect to Sections 2.1, 2.2(c), 2.3, and 6.2, any other employee
of the Company named in an Officers’ Certificate delivered to the
Trustee.
“Corresponding Borrower
Loan” means the Prosper Borrower Loan upon which a series of Prosper
Borrower Notes is dependent for payment.
“Default” means any
event which is, or after notice or passage of time or both would be, an Event of
Default.
“Deposit Account”
means the deposit account, as defined in Section 9-108 of the UCC, in the
name of Prosper entitled
“ “,
held by the Trustee, or such additional or replacement account as may from time
to time exist, provided such account is deemed a deposit account under
Section 9-108 of the UCC and is held by the Trustee.
“Dollar” or “$” means a dollar or
other equivalent unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and private
debts.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Final Maturity” means
the date to which the Initial Maturity Date may be extended, as provided in any
Security.
“Holder” or “Securityholder,” when
used with respect to any Security, means, the person in whose name a Security is
registered on the Registrar’s books.
“Indenture” means this
Indenture, as amended or supplemented from time to time in accordance with the
terms hereof and shall include the terms of a particular series of Securities
established as contemplated in Section 2.2(c).
“Initial Maturity
Date” means the scheduled due date on which the final installment of
principal and interest is payable in any Security.
“Interest Payment
Date,” when used with respect to any Security, means the Stated Maturity
of an installment of interest on such Security.
“Lien”
means, with respect to any property or assets, any mortgage, charge,
hypothecation, pledge or other security interest or encumbrance on such property
or assets.
“Maturity,” when used
with respect to any Security, means the date on which an installment of
Principal thereof or interest thereon becomes due and payable as therein or
herein provided, whether at the Stated Maturity, Initial Maturity or Final
Maturity, by declaration of acceleration, or otherwise.
“Non-sufficient Funds
Fees” means any fee imposed by the Company or a third-party servicer or
collection agency in respect of a Borrower Loan when the Company’s payment
request is denied for any reason, including but not limited to non-sufficient
funds in the borrower’s bank account or the closing of such bank
account.
“Officer” means the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
“Officers’
Certificate” means a written certificate containing the information
specified in Sections 9.4 and 9.6, signed in the name of the Company
(i) by its Chairman of the Board, a Vice Chairman, its Chief Executive
Officer, its President or a Vice President, and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
“Opinion of Counsel”
means a written opinion containing the information specified in
Sections 9.4 and 9.6, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
2
“Other Payments and
Charges” means (i) any Non-sufficient Funds Fees or fees charged to
the borrower for making payments in a manner other than as provided in the
Borrower Loan, which are received by the Company, a third-party servicer or
collection agency in respect of such Borrower Loan, and (2) attorneys’ fees
or any collection fees imposed in connection with collection efforts on a
delinquent Borrower Loan by the Company, a third-party servicer or collection
agency, other than late payment fees specifically included in Borrower Loan
Payments.
“Payment Date” means
any Principal Payment Date or Interest Payment Date.
“Person” means any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
“Place of Payment,”
when used with respect to the Securities of any series, means the place or
places where, subject to the provisions of Section 3.5, the Principal of
and any interest on the Securities of that series are payable as specified as
contemplated by Section 2.2(c).
“Platform” means the
Company’s online auction-style marketplace for loans that facilitates loans to
borrowers, with interest rates set through auction-style competitive bidding
among individuals or institutions who become eligible to bid in the marketplace
by registering with the Company.
“Principal” or “Principal Amount” of
a Security, except as otherwise specifically provided in this Indenture, means
the outstanding principal of the Security.
“Principal Payment
Date,” when used with respect to any Security, means the Stated Maturity
of an installment of Principal on such Security.
“Record Date” for the
amounts payable on any Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by
Section 2.2(c).
“SEC” means the
Securities and Exchange Commission.
“Security” or “Securities” means the
special limited obligations of the Company referred to as Borrower Payment
Dependent Notes to be issued in series and authenticated and delivered under
this Indenture.
“Securities Act” means
the Securities Act of 1933, as amended.
“Securityholder” or
“Holder,” when
used with respect to any Security, means a person in whose name a Security is
registered on the Registrar’s books.
“Servicing Fee” means,
with respect to any Borrower Loan, an annualized percentage rate, as specified
by the Company and, if applicable, a third-party servicer with respect to a
series of Securities, of the outstanding principal balance of the Borrower
Loan.
“Stated Maturity,”
when used with respect to any installment of Principal thereof or interest
thereon, means the date specified in such Security as the fixed date on which an
amount equal to such installment of Principal thereof or interest thereon is due
and payable.
“Subsidiary” means,
with respect to any person, a corporation of which a majority of the Capital
Stock having voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation is owned by (i) such person,
(ii) such person and one or more Subsidiaries or (iii) one or more
Subsidiaries of such person.
“TIA” means the Trust
Indenture Act of 1939 as in effect on the date of this Indenture, except as
provided in Section 8.3.
“Trust Officer” means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, trust officer or any other officer of the Trustee who customarily
performs 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 such person’s knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
3
“Trustee” means the
party named as the “Trustee” in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor.
“UCC” means the
Uniform Commercial Code as the same may, from time to time, be in effect in the
State of New York, except with respect to perfection matters which shall be
governed by the Uniform Commercial Code of the relevant jurisdiction necessary
to effect the perfection of a security interest.
“United States” means
the United States of America, its territories, its possessions (including the
Commonwealth of Puerto Rico), and other areas subject to its
jurisdiction.
Section 1.2 OTHER
DEFINITIONS.
Term
Defined in Section
“Bankruptcy
Law”
5.1
“Custodian”
5.1
“Defaulted
Payment”
2.10
“Event
of Default”
5.1
“Legal
Holiday”
9.9
“Notice
of Default”
5.1
“Outstanding”
2.8
“Paying
Agent”
2.4
“Registrar”
2.4
“Collateral”
6.12
Section 1.3 INCORPORATION BY REFERENCE
OF TRUST INDENTURE ACT. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
All other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.
Section 1.4 RULES OF
CONSTRUCTION. Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles in the United States as
in effect from time to time;
(c) “or”
is not exclusive;
(d) “including”
means including, without limitation; and
(e) words
in the singular include the plural, and words in the plural include the
singular.
4
ARTICLE
II
THE
SECURITIES
Section 2.1 FORMS
GENERALLY. The securities of each series and the certificate
of authentication in respect thereof shall be in substantially the form set
forth on Exhibit A as
shall be established by delivery to the Trustee of a Company Order, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the Officers executing
such Securities as evidenced by their execution of the
Securities. The Securities shall be in fully registered form only and
shall be printed, lithographed, engraved, word processed or evidenced in
electronic form or produced by any combination of these methods or may be
produced in any other manner, all as determined by the Officers executing such
Securities as evidenced by their execution of such Securities.
Section 2.2 TITLE,
TERMS AND DENOMINATIONS.
(a) The
aggregate Principal Amount of Securities that may be authenticated and delivered
under this Indenture shall be unlimited.
(b) To
the extent provided in, and except as otherwise permitted by, this Indenture,
(1) the Securities shall be special limited obligations of the Company and
(2) no payments of Principal and interest on the Securities of any series
shall be payable unless the Company has received Borrower Loan Payments in
respect of the Borrower Loan corresponding to such series, and then shall be
payable equally and ratably on the Securities of such series only to the extent
of the Borrower Loan Net Payments related to the Borrower Loan corresponding to
such series. No Holder of a Security shall have any recourse against
the Company unless and then only to the extent that the Company (1) has
failed to pay such Holder the Borrower Loan Net Payments in respect of the
Borrower Loan corresponding to such Holder’s Security or (2) has otherwise
breached a covenant in this Indenture.
(c) For
each series of Securities there shall be established and, subject to
Section 2.3, set forth, or determined in the manner provided, in a Company
Order:
(i) the
title of the Securities of the series (which shall distinguish the Securities of
the series from all other Securities);
(ii) the
limit upon the aggregate Principal Amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of Securities of the
series pursuant to Sections 2.7 or 8.5);
(iii) the
Borrower Loan that corresponds to Securities of the series;
(iv) the
Stated Maturity and Payment Dates of the Securities of the series and the Record
Date for any amounts payable on any Payment Date;
(v) the
stated rate at which the Securities of the series shall bear
interest;
(vi) the
place or places where, subject to the provisions of Section 3.5, the
Principal of and or interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of transfer and
notices and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(vii) any
restrictions on the transfer or transferability of Securities of the
series;
(viii) the
obligation, if any, of the Company to redeem Securities of the series at the
option of a Holder thereof, the conditions, if any, giving rise to such
obligation, and the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series shall be
purchased, in whole or in part;
(ix) the
denominations in which any Securities of the series shall be
issuable;
5
(x) any
addition to or change in the Events of Default which apply to any Securities of
the series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2;
(xi) any
addition to or change in the covenants set forth in Article III which apply
to Securities of the series;
(xii) any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 8.1(g));
and
(xiii) any
endorsement reflecting the transfer of any Security upon sale of such
Security.
All
Securities of a series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to a Company
Order pursuant to this Section 2.2(c) or in any indenture supplemental
hereto.
(d) Prior
to the issuance of the initial series of Securities under this Indenture, a copy
of the Board Resolution authorizing the execution, delivery and performance of
this Indenture, shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of an
Officers’ Certificate setting forth the general terms of the
Securities. Such Board Resolution and Officers’ Certificate shall
provide general terms for Securities and provide either that the specific terms
of each series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company’s agents designated in
an Officers’ Certificate, in accordance with the Company Order as contemplated
by Section 2.3.
Section 2.3 EXECUTION, AUTHENTICATION,
DELIVERY AND DATING. The Securities shall be executed on
behalf of the Company by its Chairman of the Board, one of its Vice Chairmen,
its President or one of its Vice Presidents, or the Treasurer or any Assistant
Treasurer. The signature of any of these officers on the Securities
may be electronic, manual or facsimile.
Securities
bearing the electronic, manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any
time and from time to time after the execution and delivery of this Indenture
(and subject to delivery of the Board Resolution and Officers’ Certificate as
set forth in Section 2.2 prior to the issuance of the initial series of
Securities), the Company may authenticate and deliver Securities of any series
and upon such authentication and delivery shall promptly provide a record of all
such Securities executed and authenticated by the Company to the Trustee,
together with a copy of the Company Order authorizing the authentication and
delivery of such Securities;
In
addition, prior to the issuance of the initial series of Securities, the Trustee
shall receive, and shall be fully protected in conclusively relying upon, an
Opinion of Counsel stating:
(a) that
the forms of such Securities have been, and the terms of such Securities (when
established in accordance with such procedures as may be specified from time to
time in a Company Order, all as contemplated by and in accordance with a Board
Resolution pursuant to Section 2.2(d), as the case may be) will have been,
duly authorized by the Company and established in conformity with the provisions
of this Indenture;
(b) that
such Securities, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Company in accordance with this Indenture,
and (3) 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 customary exceptions; and
(c) that
all laws and requirements in respect of the execution and delivery by the
Company of such Securities have been complied with.
The
Trustee may conclusively rely, as to the authorization by the Company of any
series of Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and
other
6
documents
delivered pursuant to Sections 2.1, 2.2(c) and 2.2(d) and this
Section, as applicable, at or prior to the time of the first authentication of
Securities of the initial series of Securities unless and until it has received
written notification that such opinion or other documents have been superseded
or revoked. In connection with the authentication and delivery of
Securities, the Trustee shall be entitled to assume, unless it has received
written notice to the contrary or any of its Trust Officers has actual knowledge
to the contrary, that the Company’s authentication and delivery of such
Securities do not violate any rules, regulations or orders of any governmental
agency or commission having jurisdiction over the Company.
Each
Security shall be dated the date of its authentication.
The
Company may appoint an authenticating agent acceptable to the Trustee to
authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Company may do so. Each reference in this Indenture to authentication
by the Company includes authentication by such agent.
No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Company by electronic or manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Company’s certificate of authentication shall be in
substantially the following form:
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
PROSPER
MARKETPLACE, INC.
as
Authenticating Agent
By:
Name:
Title:
Section 2.4 REGISTRAR AND PAYING
AGENT. The Company shall maintain, with respect to each series
of Securities, an office or agency where such Securities may be presented for
registration of transfer or for exchange (“Registrar”) and an
office or agency where such Securities may be presented for purchase or payment
(“Paying
Agent”). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term
Paying Agent includes any additional paying agent.
The
Company shall enter into an appropriate agency agreement with respect to each
series of Securities with any Registrar, Paying Agent or
co-registrar. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar
or co-registrar.
The
Company initially will serve as the Registrar and Paying Agent in connection
with such Securities.
Section 2.5 PAYING AGENT TO HOLD MONEY
AND SECURITIES IN TRUST. Except as otherwise provided herein,
prior to or on each due date of payments in respect of any series of Securities,
the Company shall deposit with the Paying Agent with respect to such Securities
a sum of money sufficient to make such payments when so becoming
due. The Company shall require each Paying Agent (other than the
Trustee or the Company) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by such Paying
Agent for the making of payments in respect of the Securities of such series and
shall notify the Trustee in writing of any default by the Company in making any
such payment. At any time during the continuance of any such default,
a Paying Agent shall, upon the written request of the Trustee, forthwith pay to
the Trustee all money so held in trust with respect to such
Securities. If the Company, a Subsidiary or an Affiliate of either of
them acts as Paying Agent for a series of Securities, it shall segregate the
money held by it as Paying Agent with respect to such Securities. The
Company at any time may require a Paying Agent for a series of Securities to pay
all money held by it with respect to such Securities to the Trustee and to
account for any money disbursed by it. Upon doing so, such Paying
Agent shall have no further liability for the money.
Section 2.6 SECURITYHOLDER
LISTS. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each series of Securities. The Company shall
cause to be furnished to the Trustee at least monthly on the first business day
of each month a listing of Holders of each series of Securities dated within
15 days of the date on which the list is furnished and at such other times
as
7
the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders of
each series of Securities.
Section 2.7 TRANSFER. Subject
to any limitations on transferability set forth in a Security, upon surrender
for registration of transfer of such Security at the office or agency of the
Company designated pursuant to Section 3.5 for such purpose in a Place of
Payment, the Company shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company may (1) impose a reasonable
administrative fee for any registration of transfer or exchange, which fee shall
be described on the Company’s websitewww.prosper.com and may be changed or
waived from time to time and (2) require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges that may be imposed in
connection with the transfer of the Securities from the Securityholder
requesting such transfer.
All
Securities issued upon any registration of transfer of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer.
Every
Security presented or surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed, by the Holder thereof or his attorney
duly electronically or in writing.
Section 2.8 OUTSTANDING SECURITIES;
DETERMINATIONS OF HOLDERS’ ACTION. Securities of any series
“Outstanding” at any time are, as of the date of determination, all the
Securities of such series theretofore authenticated by the Company for such
series except for those cancelled by it, those delivered to it for cancellation
and those described in this Section 2.8 as not outstanding. A
Security does not cease to be “Outstanding” because the Company or an Affiliate
thereof is the Holder of the Security; provided, however, that in
determining whether the Holders of the requisite Principal Amount of Outstanding
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in conclusively relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Trust Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the
Company or any Affiliate of the Company. Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination.
If the
Paying Agent (other than the Company) holds, in accordance with this Indenture,
on the final Stated Maturity, money sufficient to pay Securities payable on that
date in full, then on and after that date such Securities shall cease to be
Outstanding.
Section 2.9 CANCELLATION. All
Securities surrendered for payment, or registration of transfer, shall, if
surrendered to any person other than the Company, be delivered to the Company
and all Securities so delivered shall be promptly cancelled by
it. The Company may at any time cancel any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever and may cancel any Securities previously authenticated
hereunder that the Company has not issued and sold. The Company may
not reissue, or issue new Securities to replace, Securities it has
cancelled.
No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted in the form
of Securities for any particular series or as permitted by this
Indenture.
Section 2.10 PAYMENTS. Payment
of Principal and interest on any Security which is payable, and is punctually
paid or duly provided for, on any Payment Date shall be paid to the person in
whose name that Security is registered at the close of business on the Record
Date for such Payment Date.
Any
payment on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Payment Date (herein called “Defaulted Payment”)
shall forthwith cease to be payable to the Holder on the relevant Record Date,
and such Defaulted Payment may be paid by the Company to the Holder of the
Security on a record date chosen by the Company and in any lawful manner, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this paragraph, such manner of payment shall be deemed practicable
by the Trustee.
8
Subject
to the foregoing provisions of this Section and Section 2.7, each
Security delivered under this Indenture upon registration of transfer of any
other Security shall carry the rights to payments, which were carried by such
other Security.
Section 2.11 PERSONS DEEMED
OWNERS. Prior to due presentment of a Security 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 Security is registered as
the owner of such Security for the purpose of receiving payment of Principal of
and interest on such Security and for all other purposes whatsoever, whether or
not such Security 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.
Section 2.12 CUSIP
NUMBERS. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.
ARTICLE
III
COVENANTS
Section 3.1 PAYMENT OF
SECURITIES. The Company shall promptly make all payments in
respect of each series of Securities in lawful money of the United States on the
dates and in the manner provided in the Securities but solely from the sources
provided pursuant to Section 2.2(b) and, to the extent not otherwise
so provided, pursuant to this Indenture. The Company shall have no
liability or obligation with respect to the payment of principal and interest on
any Securities except to the extent of the Borrower Loan Net Payments in respect
of the Borrower Loan corresponding to such series. At the Company’s
option, payments of Principal or interest may be made by check or by transfer
into an account administered by the Company“for the benefit of” the payee or to
an account maintained by the Trustee.
Section 3.2 SEC
REPORTS. The Company shall file with the Trustee, within
15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act. The Company also shall comply with
the other provisions of TIA Section 314(a).
Section 3.3 COMPLIANCE CERTIFICATE;
STATEMENT BY OFFICERS AS TO DEFAULT. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year (beginning
with the fiscal year ending on December 31, 2009) an Officers’ Certificate,
one of the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating
whether or not the signers know of any Default that occurred during such
period. If they do, such Officers’ Certificate shall describe the
Default and its status.
The
Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
Section 3.4 FURTHER INSTRUMENTS AND
ACTS. Upon request of the Trustee, the Company will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
Section 3.5 MAINTENANCE OF OFFICE OR
AGENCY. The Company will maintain in each Place of Payment for
such series an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The office of the Company at 111 Sutter Street, 22nd
Floor, San Francisco, California94104 shall be such office or agency for all of
the aforesaid purposes unless the Company shall maintain some other office or
agency for such purposes and shall give prompt written notice to the Trustee of
the location, and any change in the location, of such other office or
agency.
9
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series 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 accordance with the requirements
set forth above for Securities of any series 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 3.6 BORROWER
LOAN SERVICING.
(a) With
respect to each series of Securities, the Company or a third-party servicer
shall use commercially reasonable efforts to service and collect the Borrower
Loan corresponding to such series, in good faith, accurately and in accordance
with industry standards customary for servicing loans such as the Borrower
Loans. Notwithstanding the generality of the foregoing,
(1) referral of a delinquent Borrower Loan to a collection agency within
five (5) Business Days after it becomes thirty days past-due, that referral
shall be deemed to constitute commercially reasonable servicing and collection
efforts; and (2) the Company and any third-party servicer of a Borrower
Loan shall have the right, at any time and from time to time and subject to the
foregoing servicing standard, to change the Stated Maturity of the principal of,
or any installment of principal or interest on, any Borrower Loan, or reduce the
principal amount thereof or the rate of interest thereon or change the Place of
Payment where, or change the coin or currency in which, any installment of
principal and interest on any such Security is payable or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof, or amend or waive any term of such Borrower Loan, or write off
and cancel such Borrower Loan without the consent of any Holder of any
Securities of the series corresponding to such Borrower Loan.
(b) With
respect to each series of Securities, the Company shall use commercially
reasonable efforts to maintain backup servicing arrangements providing for the
Borrower Loan corresponding to such series to be serviced and collected in good
faith, accurately and in accordance with industry standards customary for
servicing loans such as the Borrower Loans.
ARTICLE
IV
SUCCESSOR
CORPORATION
Section 4.1 WHEN COMPANY MAY MERGE
OR TRANSFER ASSETS. The Company shall not consolidate with or
merge with or into any other person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, unless:
(a) either
(1) the Company shall be the continuing corporation or (2) the person
(if other than the Company) formed by such consolidation or into which the
Company is merged or the person which acquires by conveyance, transfer or lease
the properties and assets of the Company substantially as an entirety
(i) shall be a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States or any state
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing; and
(c) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been satisfied.
The
successor person formed by such consolidation or into which the Company is
merged or the successor person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged from all obligations and covenants under this
Indenture, and the Securities.
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ARTICLE
V
DEFAULTS
AND REMEDIES
Section 5.1 EVENTS OF
DEFAULT. Unless otherwise specified as contemplated by
Section 2.2(c) with respect to any series of securities, an “Event of Default”
occurs, with respect to each series of the Securities individually,
if:
(a) the
Company defaults, subject in each case, to the limitations set forth in Sections
2.2(b) and 3.1 and in the Securities in the payment of any Principal of, or
interest upon, any Security of such series when the same becomes due and payable
and continuance of such default for a period of 30 days;
(b) the
Company fails to comply with any of its agreements in the Securities or this
Indenture (other than those referred to in clause (a) above and other than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series) and such failure continues for 90 days
after receipt by the Company of a Notice of Default; provided, however, that if the
Company shall proceed to take curative action which, if begun and prosecuted
with due diligence, cannot be completed within a period of 90 days, then
such period shall be increased to such extent as shall be necessary to enable
the Company diligently to complete such curative action;
(c) there
shall have been the entry by a court of competent jurisdiction of (i) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Bankruptcy Law or (ii) a decree or order
adjudging the Company bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the wind up or
liquidation of its affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days;
(d) (i) the
Company commences a voluntary case or proceeding under any applicable Bankruptcy
Law or any other case or proceeding to be adjudicated bankrupt or insolvent,
(ii) the Company consents to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, (iii) the Company files a petition or answer or
consent seeking reorganization or substantially comparable relief under any
applicable federal state law, (iv) the Company (1) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property,
(2) makes an assignment for the benefit of creditors or (3) admits in
writing its inability to pay its debts generally as they become due or
(v) the Company takes any corporate action in furtherance of any such
actions in this clause (d); or
(e) any
other Event of Default specifically provided with respect to Securities of that
series occurs.
“Bankruptcy
Law” means Title 11, United States Code, or any similar federal or state law for
the relief of debtors. “Custodian” means any receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy
Law.
A Default
under clause (b) above is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of all series for which such Default exists
notify the Company and the Trustee, of the Default and the Company does not cure
such Default within the time specified in clause (b) above after receipt of
such notice. Any such notice must specify the Default, demand that it
be remedied and state that such notice is a “Notice of Default.”
Section 5.2 ACCELERATION. If
an Event of Default specified in Section 5.1(c) or (d) occurs and
is continuing, the Principal (or portion thereof) of all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders, notwithstanding the second
sentence of Section 3.1 hereof and without respect to whether there are or
will be Borrower Loan Net Payments in respect of the Borrower Loans
corresponding to the Securities. The Holders of a majority in
aggregate Principal Amount of all Outstanding Securities, by notice to the
Trustee (and without notice to any other Securityholder) may rescind an
acceleration and its consequences if (a) the rescission would not conflict
with any judgment or decree, and (b) all Events of Default specified in
Section 5.1(c) or (d) have been cured or waived. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. For avoidance of doubt, there shall be no
acceleration of the Principal (or portion thereof) of any Securities upon the
occurrence of and Event of Default other than an Event of Default specified in
Section 5.1(c) or (d).
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Section 5.3 OTHER
REMEDIES. If an Event of Default with respect to a series of
Outstanding Securities occurs and is continuing, the Trustee may pursue any
available remedy to (a) collect the payment of the whole amount then due
and payable on such Securities for Principal and interest, with interest upon
the overdue Principal and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest from the date such
interest was due, at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including amounts due the Trustee under
Section 6.7, (b) exercise any and all rights of a secured party under
the UCC and other applicable law pursuant to the security interest granted to
the Trustee under Section 6.12, or (c) enforce the performance of any
provision of the Securities or this Indenture.
The
Trustee may maintain a proceeding even if the Trustee does not possess any of
the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 5.4 WAIVER OF PAST
DEFAULTS. The Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of any series, by notice to the Trustee
(and without notice to any other Securityholder), may on behalf of the Holders
of all the Securities of such series waive an existing Default with respect to
such series and its consequences except (a) an Event of Default described
in Section 5.1(a) with respect to such series or (b) a Default in
respect of a provision that under Section 8.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series
affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
Section 5.5 CONTROL BY
MAJORITY. The Holders of a majority in aggregate Principal
Amount of the Outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee with respect to the
Securities. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability.
Section 5.6 LIMITATION ON
SUITS. A Holder of any Security of any series may not pursue
any remedy with respect to this Indenture or the Securities unless:
(a) the
Holder gives to the Trustee written notice stating that an Event of Default with
respect to the Securities of that series is continuing;
(b) the
Holders of at least 25% in aggregate Principal Amount of the Outstanding
Securities of that series make a written request to the Trustee to pursue the
remedy;
(c) such
Holder or Holders offer to the Trustee security or indemnity satisfactory to it
against any loss, liability or expense satisfactory to the Trustee;
(d) the
Trustee does not comply with the request within 60 days after receipt of
the notice, the request and the offer of security or indemnity; and
(e) the
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of that series do not give the Trustee a direction inconsistent with
such request during such 60-day period.
A
Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other
Securityholder (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders).
Section 5.7 RIGHTS OF HOLDERS TO RECEIVE
PAYMENT. Subject to Section 3.6(a), the right, which is
absolute and unconditional, of any Holder of any Security to receive payment of
the Principal of and interest on (subject to Sections 2.2(b) and 2.10)
such Security on the Stated Maturity or Maturities expressed in such Security
held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected adversely without the
consent of each such Holder.
Section 5.8 COLLECTION SUIT BY
TRUSTEE. If an Event of Default described in
Section 5.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as
trustee
12
of an
express trust against the Company for the whole amount owing with respect to
such series of Securities and the amounts provided for in
Section 6.7.
Section 5.9 TRUSTEE MAY FILE PROOFS
OF CLAIM. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the Principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue Principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to
file and prove a claim for the whole amount of Principal and interest owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amount due the
Trustee under Section 6.7) and of the Holders of Securities allowed in such
judicial proceeding,
(b) to
terminate the Company’s rights to service the Borrower Loans and require the
substitution of a backup servicer in place of the Company, and
(c) to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder of Securities to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders of Securities, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing
herein contained shall be deemed to authorize the Trustee or the holders of
Securities to authorize or consent to or accept or adopt on behalf of any Holder
of a Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding.
Section 5.10 PRIORITIES. If
the Trustee collects any money pursuant to this Article V, it shall pay out
the money in the following order and, in case of the distribution of such money
on account of Principal or interest, upon presentation of the Securities, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: to
the Trustee for amounts due under Section 6.7;
SECOND:
to Securityholders for amounts due and unpaid for the Principal and interest on
the Securities 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 Securities for Principal and interest,
respectively; and
The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 5.10. At least
15 days before such record date, the Company shall mail or electronically
transmit to each Securityholder and the Trustee a notice that states the record
date, the payment date and amount to be paid.
Section 5.11 UNDERTAKING FOR
COSTS. 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, a court in its discretion may require the filing by
any party litigant (other than the Trustee) in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 5.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 5.7 or a suit by Holders of more than 10% in aggregate Principal
Amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of the
Principal of or interest on any Security or the payment of any coupon on or
after the Stated Maturity or Maturities expressed in such
Security.
13
Section 5.12 WAIVER OF STAY, EXTENSION OR
USURY LAWS. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE
VI
TRUSTEE
Section 6.1 DUTIES
OF TRUSTEE.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in its exercise as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b) Except
during the continuance of an Event of Default with respect to Securities of any
series:
(i) the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph (c) does not limit the effect of paragraph (b) of this
Section 6.1;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to
Section 5.5 or exercising any trust or power conferred upon the Trustee
under this Indenture.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this
Section 6.1.
(e) The
Trustee may refuse to perform any duty or exercise any right or power or extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall not be liable
for any interest on any money received by it except as the Trustee may otherwise
agree in writing with the Company.
Section 6.2 RIGHTS
OF TRUSTEE.
(a) The
Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
14
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel.
(c) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or
powers.
(d) The
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, Opinion of Counsel (or
both), Company Order or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon, security
or other paper believed to be genuine and to have been signed or presented by
the proper party or parties.
(e) Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Company.
(f) The
Trustee may consult with counsel of its selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in reliance thereon in accordance with such advice or Opinion of
Counsel.
(g) The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby.
(h) Prior
to the occurrence of an Event of Default hereunder and after the curing or
waiving of all Events of Default, 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, appraisal, bond, debenture, note, security or other paper or document
unless requested in writing to do so by the Holders of not less than a majority
in the aggregate principal amount of the Securities of such series then
Outstanding; provided, 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 any 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 indemnity satisfactory to it against
such expense or liabilities as a condition to proceeding; the reasonable expense
of every such investigation shall be paid by the Company or, if paid by the
Trustee or any predecessor trustee, shall be repaid by the Company upon
demand.
(i) 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 not regularly in
its employ and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder.
(j) The
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(k) In
no event shall the Trustee be responsible or liable for special, indirect,
punitive 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.
(l) The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the designated corporate trust office of the Trustee, and such notice
references the Securities and this Indenture.
(m) 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, and
each agent, custodian and other Person employed to act
hereunder.
15
(n) The
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(o) The
Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.
Section 6.3 INDIVIDUAL RIGHTS OF
TRUSTEE, ETC. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee. Any Paying Agent, Authenticating Agent, Registrar or
co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 6.10 and
6.11.
Section 6.4 TRUSTEE’S
DISCLAIMER. The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities. The Trustee shall not be accountable for the
Company’s use of the proceeds from the Securities and, shall not be responsible
for any statement in the registration statement for the Securities under the
Securities Act of 1933, as amended, or in the Indenture or the Securities or for
the determination as to which beneficial owners are entitled to receive any
notices hereunder.
Section 6.5 NOTICE OF
DEFAULTS. If a Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall give to each Holder of Securities of such series notice of such Default in
the manner set forth in TIA Section 315(b) within 90 days after
it occurs. Except in the case of a Default described in
Section 5.1(a) with respect to any Security of such series or a
Default in the payment of any sinking fund installment with respect to any
Security of such series, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of the Holders of Securities of such
series.
Section 6.6 REPORTS BY TRUSTEE TO
HOLDERS. If required by Section 313(a) of the TIA,
within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail or transmit
electronically to each Holder of Securities a brief report dated as of such
May 15 that complies with TIA Section 313(a). ). If the
Trustee is required to prepare such report pursuant to
Section 313(a) of the TIA and if it chooses to transmit such report
electronically, the Trustee appoints the Company, and the Company agrees to act
as the Trustee’s agent to transmit such report electronically to each Holder of
Securities and to the SEC as provided in the immediately following paragraph.
Promptly following such transmissions, the Company shall certify, in writing, to
the Trustee that it has effected each of such transmissions to Holders of
Securities and to the SEC. The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of
each report at the time of its mailing or transmission to Holders of Securities
shall be filed with the SEC.
Section 6.7 COMPENSATION AND
INDEMNITY. The Company agrees:
(a) to
pay to the Trustee from time to time such compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, advances and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim (whether asserted by the Company, a Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
To secure
the Company’s payment obligations in this Section 6.7, the Trustee shall
have a lien prior to the Securities on all money or property held or collected
by the Trustee, except that held in trust to pay the Principal of or interest,
if any, on particular Securities.
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The
Company’s obligations pursuant to this Section 6.7 shall survive the
discharge or other termination of this Indenture or the resignation or removal
of the Trustee. When the Trustee incurs expenses after the occurrence
of a Default specified in Section 5.1(c) or (d), the expenses are
intended to constitute expenses of administration under any Bankruptcy
Law.
Section 6.8 REPLACEMENT OF
TRUSTEE. The Trustee may resign by so notifying the Company;
PROVIDED, HOWEVER, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this
Section 6.8. The Holders of a majority in aggregate Principal
Amount of the Outstanding Securities at the time outstanding may remove the
Trustee with respect to the Securities by so notifying the Trustee and may
appoint a successor Trustee, which successor Trustee shall, in the absence of an
Event of Default, be reasonably acceptable to the Company. The
Company shall remove the Trustee if:
(a) the
Trustee fails to comply with Section 6.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
receiver or public officer takes charge of the Trustee or its property;
or
(d) the
Trustee otherwise becomes incapable of acting.
If the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, with respect to the Securities of one or more series, the
Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
series).
In the
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the retiring
Trustee shall become effective and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail or electronically transmit a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 6.7.
In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
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, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees as co-Trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each 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 with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates,
subject, nevertheless, to its lien, if any, provided for in
Section 6.7.
If a
successor Trustee with respect to the Securities of any series does not take
office within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
17
If the
Trustee fails to comply with Section 6.10, any Holder of a Security of such
series may petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor Trustee.
Section 6.9 SUCCESSOR TRUSTEE BY
MERGER. If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or
assets to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
Section 6.10 ELIGIBILITY;
DISQUALIFICATION. The Trustee shall at all times satisfy the
requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA
Section 310(b)(9). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed
incorporated herein.
Section 6.11 PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY. The Trustee shall comply with TIA
Section 311(a), excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated
therein.
Section 6.12 SECURITY
INTEREST. The Company hereby pledges, assigns and grants to
the Trustee, as security for the due payment and performance of all the
Company’s obligations under this Indenture for the Securities, for the benefit
of the Trustee on behalf of the Holders, a security interest in and to all of
its right, title and interest, whether now or hereafter existing or acquired, in
the following: (a) the Company’s right to payment under the Corresponding
Borrower Loans, (b) the Deposit Account and all money and other property
from time to time credited to the Deposit Account, (c) all money, cash,
instruments, interest, income and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the foregoing held for the benefit and security of the Holders of the
Securities, (d) all present and continuing right, power and authority of
the Company, in the name and on behalf of the Company, as agent and
attorney-in-fact, or otherwise, to make claim for and demand performance on,
under or pursuant to any of the foregoing held for the benefit and security of
the Holders of the Securities, to bring actions and proceedings thereunder or
for the specific or other enforcement thereof, or with respect thereto, to make
all waivers and agreements, to grant or refuse requests, to give or withhold
notices, and to exercise all rights, remedies, powers, privileges and options,
to grant or withhold consents and approvals and do any and all things and
exercise all other discretionary rights, options, privileges or benefits which
the Company is or may become entitled to do with respect to the foregoing held
for the benefit of the Holders of the Securities without notice to, consent or
approval by or joinder of the Company, and (e) all revenues, issues,
products, accessions, substitutions, replacements, profits and proceeds of and
from all the foregoing (the “Collateral”). At the expense of the
Company, the Company agrees to execute, deliver and file such further
agreements, instruments and certificates as may be necessary to preserve,
perfect and protect the title and interests of the Trustee on behalf of the
Holders of the Securities, including but not limited to, the execution by the
Company of an instrument of assignment to the Trustee and the execution by the
Company and the filing of financing statements pursuant to the UCC. The Company
shall, at its expense, do any further acts and execute, acknowledge, deliver,
file, register and record any further documents as are necessary in order to
protect the Trustee’s title to and first priority perfected security interest in
the Collateral, subject to no Liens or charges of any type whatsoever except for
Liens pursuant to and permitted by this Indenture.
In
furtherance of the grant of the security interest in the Collateral for the
Securities, upon and during continuance of an Event of Default, the Company
grants to the Trustee on behalf of the Holders the full, exclusive and
irrevocable right, power and authority to exercise any and all rights of the
Company with respect to the Collateral held for the benefit of the Holders of
Securities, and each contract, agreement or other document or instrument
included therein. The Trustee agrees that, except upon and during the
continuance of an Event of Default, it shall not exercise the power of attorney,
or any rights granted to the Trustee pursuant to this
Section 6.12.
ARTICLE
VII
SATISFACTION
AND DISCHARGE
Section 7.1 DISCHARGE OF LIABILITY ON
SECURITIES. This Indenture shall upon Company Request cease to
be of further effect as to all Outstanding Securities or all Outstanding
Securities of any series, as the case may be (except as to any surviving rights
of registration of transfer of Securities 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:
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(a) either
(i) all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered, (other than Securities or
Securities of such series, as the case may be, for whose payment money has
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 7.2) have been delivered to the Company or the Trustee
for cancellation; or
(ii) all
such Securities not theretofore delivered to the Company or the Trustee for
cancellation,
(1) have
become due and payable, or
(2) will
become due and payable at their Stated Maturity within one year;
and the
Company, in the case of (1) or (2) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose, an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee or the Company for cancellation, for
principal and any interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity, as the
case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
The
Trustee shall join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers’ Certificate and Opinion of Counsel and at
the cost and expense of the Company.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Securities
of any series, the obligations of the Company to the Trustee with respect to the
Securities of that series under Section 6.7, the obligations of the Company
to any Authenticating Agent and, if money shall have been deposited with the
Trustee pursuant to clause (b) of this Section, Section 7.2 shall
survive. The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
Section 7.2 REPAYMENT TO THE
COMPANY. The Trustee and the Paying Agent shall return to the
Company on Company Request any money held by them for the payment of any amount
with respect to the Securities that remains unclaimed for two
years. After return to the Company, Holders entitled to the money
must look to the Company for payment as general creditors with limited recourse
as described herein and in the Securities unless an applicable abandoned
property law designates another person.
Section 8.1 SUPPLEMENTAL INDENTURES
WITHOUT CONSENT OF HOLDERS. Without the consent of any Holders
of Securities, the Company and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a) to
evidence the succession of another corporation to the Company and the assumption
by any such successor of the covenants of the Company herein and in the
Securities; or
(b) to
add to the covenants, agreements and obligations of the Company for the benefit
of the Holders of all of the Securities or any series thereof, or to surrender
any right or power herein conferred upon the Company; or
19
(c) to
establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.2(c), respectively; or
(d) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series 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 6.8; or
(e) to
cure any ambiguity, defect or inconsistency;
(f) to
amend restrictions on transferability of any Securities on any series in any
manner that does not adversely affect the rights of any Securityholder in any
material respect; or
(g) to
add to, change or eliminate any of the provisions of this Indenture (which
addition, change or elimination may apply to one or more series of Securities),
provided that any such addition, change or elimination shall neither
(i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision; or
(h) to
secure the Securities; or
(i) to
make any other change that does not adversely affect the rights of any
Securityholder in any material respect.
Section 8.2 SUPPLEMENTAL INDENTURES WITH
CONSENT OF HOLDERS. With the written consent of the Holders of
at least a majority in aggregate Principal Amount of the Outstanding Securities
of each series affected by such supplemental indenture, the Company and the
Trustee may amend this Indenture or the Securities of any series or may 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 modifying in any manner the rights of the Holders of the
Securities of such series and under this Indenture; provided, however, that no such
amendment or supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(a) Subject
to Section 3.6(a), change the Stated Maturity of the Principal of, or any
installment of Principal or interest on, any such Security, or reduce the
Principal Amount thereof or the rate of interest thereon that would be due and
payable upon a declaration of acceleration of maturity thereof pursuant to
Section 5.2, or change the Place of Payment where, or change the coin or
currency in which, any installment of principal of or interest on, any such
Security is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof;
(b) reduce
the percentage in Principal Amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such amendment or supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) with respect to the Securities of such series
provided for in this Indenture; or
(c) modify
any of the provisions of this Section, Section 5.4 (clauses (a) and
(b)) or 5.7, except to increase the percentage of Outstanding Securities of such
series required for such actions to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall
not be necessary for the consent of the Holders under this Section 8.2 to
approve the particular form of any proposed amendment or supplemental indenture,
but it shall be sufficient if such consent approves the substance
thereof.
After an
amendment or supplemental indenture under this Section 8.2 becomes
effective, the Company shall mail or electronically transmit to each Holder of
the particular Securities affected thereby a notice briefly describing the
amendment.
20
Section 8.3 COMPLIANCE WITH TRUST
INDENTURE ACT. Every supplemental indenture executed pursuant
to this Article shall comply with the TIA as then in effect.
Section 8.4 REVOCATION AND EFFECT OF
CONSENTS, WAIVERS AND ACTIONS. Until an amendment or waiver
with respect to a series of Securities becomes effective, a consent to it or any
other action by a Holder of a Security of that series hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
that Security that evidences the same obligation as the consenting Holder’s
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke
the consent, waiver or action as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the Company or
an agent of the Company certifies to the Trustee that the consent of the
requisite aggregate Principal Amount of the Securities of that series has been
obtained. After an amendment, waiver or action becomes effective, it
shall bind every Holder of Securities of that series.
The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment or waiver with
respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
Section 8.5 NOTATION ON OR EXCHANGE OF
SECURITIES. Securities of any series authenticated and
delivered after the execution of any supplemental indenture with respect to such
series pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new
Securities of such series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared, executed, authenticated and delivered by the Company in exchange for
outstanding Securities of that series.
Section 8.6 TRUSTEE TO SIGN SUPPLEMENTAL
INDENTURES. The Trustee shall sign any supplemental indenture
authorized pursuant to this Article VIII if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign
it. In signing such amendment, the Trustee shall receive, and shall
be fully protected in conclusively relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
Section 8.7 EFFECT OF SUPPLEMENTAL
INDENTURES. Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby, except to the extent otherwise
set forth thereon.
ARTICLE
IX
MISCELLANEOUS
Section 9.1 TRUST INDENTURE ACT
CONTROLS. If any provision of this Indenture limits, qualifies
or conflicts with another provision hereof which is required to be included in
this Indenture by the TIA, the required provision shall control.
Section 9.2 NOTICES. Any
notice or communication shall be in writing and delivered in person, mailed by
first-class mail, postage prepaid or transmitted electronically to any Holder at
the registered address maintained in the Company’s records; PROVIDED, that any
notice or communication by and among the Trustee and the Company may be made by
telecopy and shall be effective upon receipt thereof and shall be confirmed in
writing, mailed by first-class mail, postage prepaid, and addressed as
follows:
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication given to a Holder of Securities shall be transmitted
electronically to or mailed to such Securityholder at the Securityholder’s
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Failure
to electronically transmit or mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Holders of Securities of the same series. If a notice or
communication is electronically transmitted or mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the
Company electronically transmits or mails a notice or communication to the
Holders of Securities of a particular series, it shall electronically transmit
or mail a copy to the Trustee and each Registrar, co-registrar or Paying Agent,
as the case may be, with respect to such series.
In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give notice to Holders of Securities as set
forth above, then such notification as shall be made with the acceptance of the
Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Section 9.3 COMMUNICATION BY HOLDERS
WITH OTHER HOLDERS. Securityholders may communicate pursuant
to TIA Section 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company and the
Trustee, the Registrar or the Paying Agent with respect to a particular series
of Securities, and anyone else, shall have the protection of TIA
Section 312(c).
Section 9.4 CERTIFICATE AND OPINION AS
TO CONDITIONS PRECEDENT. Upon any request or application by
the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 9.5 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 a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or
22
opinion
is based are 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 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 or opinion or representations with respect to such
matters are erroneous.
Section 9.6 STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION. Each Officers’ Certificate or Opinion
of Counsel with respect to compliance with a covenant or condition provided for
in this Indenture shall include:
(a) a
statement that each person making such Officers’ Certificate or Opinion of
Counsel has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officers’ Certificate or
Opinion of Counsel are based;
(c) a
statement that, in the opinion of each such person, he has made such examination
or investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(d) a
statement that, in the opinion of such person, such covenant or condition has
been complied with.
Section 9.7 SEPARABILITY
CLAUSE. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 9.8 RULES BY TRUSTEE, PAYING
AGENT AND REGISTRAR. With respect to the Securities of a
particular series, the Trustee with respect to such series of Securities may
make reasonable rules for action by or a meeting of Holders of such series
of Securities. With respect to the Securities of a particular series,
the Registrar and the Paying Agent with respect to such series of Securities may
make reasonable rules for their functions.
Section 9.9 LEGAL
HOLIDAYS. A “Legal Holiday” is any
day other than a Business Day. If any specified date (including an
Interest Payment Date or Stated Maturity of any Security, or a date for giving
notice) is a Legal Holiday at any Place of Payment or place for giving notice,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
Principal need not be made at such Place of Payment, or such other action need
not be taken, on such date, but the action shall be taken on the next succeeding
day that is not a Legal Holiday at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, or at the Stated Maturity or
such other date.
Section 9.10 GOVERNING LAW AND
JURISDICTION; WAIVER OF JURY TRIAL. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT WOULD
REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION. THE COMPANY, THE TRUSTEE, AND EACH HOLDER OF A SECURITY
(BY ACCEPTANCE THEREOF) THEREBY, (I) SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED
TO THIS INDENTURE, (II) IRREVOCABLY
WAIVES
ANY DEFENSE OF LACK OF PERSONAL JURISDICTION IN SUCH SUITS AND
(III) IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE FEDERAL
AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK AND THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 9.11 NO RECOURSE AGAINST
OTHERS. A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a
Security, each Holder of such
23
Security
shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the
Securities.
Section 9.12 SUCCESSORS. All
agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 9.13 EFFECT OF HEADINGS AND TABLE
OF CONTENTS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 9.14 BENEFITS OF
INDENTURE. Nothing in this Indenture or in the Securities,
express or implied, shall give to any person, other than the parties hereto and
their successors hereunder and the Holders of Securities, any benefits or any
legal or equitable right, remedy or claim under this Indenture.
Section 9.15 MULTIPLE
ORIGINALS. The exchange of copies of this Indenture and of
signature pages by facsimile of PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be
used in lieu of the original Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
Section 9.16 FORCE
MAJEURE. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 9.17 U.S.A. PATRIOT
ACT. The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Pariot Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money
laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account with the Trustee. The parties to this Indenture agree that they will
provide the Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the U.S.A. Patriot Act.
PROSPER
MARKETPLACE, INC.
By:
/s/ Christian
A. Larsen
Name: Christian
A. Larsen
Title: President
and Chief Executive Officer
Attest: /s/
Robin Lindberg
Name: Robin
Lindberg
Title: Controller
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Trustee
By:
/s/
Raymond Delli Colli
Name: Raymond
Delli Colli
Title: Vice
President
24
EXHIBIT
A
Form of
Borrower Payment Dependent Note
FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT BECAUSE
PAYMENTS ON THE NOTE ARE DEPENDENT ON PAYMENTS ON THE CORRESPONDING PROSPER
BORROWER LOAN. THE ISSUE PRICE OF THE PROSPER BORROWER NOTE (THIS “NOTE”) IS THE
STATED PRINCIPAL AMOUNT OF THIS NOTE, AND THE ISSUE DATE IS THE ORIGINAL ISSUE
DATE. UPON REQUEST, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO THE HOLDER THE
AMOUNT OF OID AND YIELD TO MATURITY OF THIS NOTE. A HOLDER SHOULD CONTACT
PROSPER MEMBER SUPPORT AT (866) 615-6319 OR
support@prosper.com.
ANY
TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL unless (1) such transfer is effected on a trading system
that is recognized by the Company, and (2) this Note has been presented by
the registered Holder (as defined below) to the Company or its agent for
registration of transfer.
BORROWER
PAYMENT DEPENDENT NOTE SERIES NO. (1)
PROSPER
MARKETPLACE, INC.
No.
[CUSIP
]
HOLDER:
(2)
CORRESPONDING
PROSPER BORROWER LOAN:
(3)
STATED
PRINCIPAL AMOUNT OF THIS NOTE: U.S. $
(4)
AGGREGATE
PRINCIPAL AMOUNT OF THIS SERIES OF NOTES: U.S. $
(5)
INTEREST
RATE:
(6)
SERVICING
FEE: AN ANNUALIZED RATE APPLIED TO THE OUTSTANDING PRINCIPAL AMOUNT OF THE
CORRESPONDING PROSPER BORROWER LOAN:
(7)
ORIGINAL
ISSUE DATE:
(8)
INITIAL
MATURITY DATE:
(9)
FINAL
MATURITY DATE:
(10)
A-1
EXTENSION
OF MATURITY DATE: Each Note will mature on the Initial Maturity Date, unless the
maturity of the Note is extended to the Final Maturity Date subject to
conditions described below. In no event will the maturity of the
Notes be extended beyond the Final Maturity Date.
PAYMENT
DATES: Subject to the limitations on payment described below, the Company will
make payments of principal and interest on or before the sixth Business Day
following receipt of any Borrower Loan Net Payments by the Company in accordance
with the payment schedule for this Note, which is available on the Holder’s
account page at www.prosper.com, subject to prepayment at any time without
penalty.
(1) Insert
loan ID number for Corresponding Prosper Borrower Loan.
(2) Insert
lender member’s screen name and member identification number.
(3) Insert
description of Corresponding Prosper Borrower Loan.
(4) Insert
principal amount of lender member’s Corresponding Prosper Borrower
Note.
(5) Insert
aggregate principal amount of Corresponding Borrower Loan.
(6) Insert
final yield percentage.
(7) Insert
total servicing fee rate to be charged by Company.
(8) Insert
date corresponding to date of funding of Corresponding Prosper Borrower
Loan.
(9) Insert
date corresponding to stated maturity of Corresponding Prosper Borrower
Loan.
(10) Insert
date that is the first anniversary of the stated maturity of Corresponding
Prosper Borrower Loan.
Prosper
Marketplace, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the “Company”), for value
received, hereby promises to pay to the person identified as the “Holder” above
(the “Holder”),
principal and interest on this Note in U.S. dollars in an amount equal to the
Holder’s equal and ratable share of the Borrower Loan Net Payments on each
Payment Date (in accordance with the payment schedule for this Note, which is
available on the Holder’s account page at www.prosper.com and subject to
prepayment) until the Initial Maturity Date or, if the maturity of the Note has
been extended, until the Final Maturity Date. For the avoidance of
doubt, (1) no payments of principal and interest on this Note shall be
payable unless the Company has received Borrower Loan Payments, and then only to
the extent of Borrower Loan Net Payments in respect of those Borrower Loan
Payments related to the Corresponding Prosper Borrower Loan identified above
that have been received by the Company, and (2) no Holder of the Note shall
have any recourse against the Company unless, and then only to the extent that,
the Company has failed to pay such Holder the Borrower Loan Net Payments or
otherwise breached a covenant in the Indenture described below that is
applicable to the series of Notes of which this Note forms a
part. Subject to certain exceptions provided in the Indenture
referred to below, the principal and interest payable on any Payment Date will
be paid to the person in whose name this Note is registered at the close of
business on the Record Date next preceding such Payment Date or maturity
date.
“Record Date” shall
mean the second Business Day immediately preceding each Interest Payment
Date.
“Business Day” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday that is (1) not a
day on which the Automated Clearing House system operated by the U.S. Federal
Reserve Bank (the “ACH
System”) is closed and (2) not a day on which banking institutions
are authorized or obligated by law or executive order to close in San Francisco,
California or New York, New York.
If, on
the Initial Maturity Date, any principal or interest payments in respect of the
Corresponding Borrower Loan remain due and payable to the Company, the maturity
date of this Note will be extended to the Final Maturity Date identified
above.
If, on
the Initial Maturity Date, no principal or interest payments in respect of the
Corresponding Borrower Loan remain due and payable to the Company, the Note will
mature on the Initial Maturity Date and no Borrower Loan Net Payments that the
Company receives in respect of the Corresponding Borrower Loan after such
Initial Maturity Date shall be required to be paid to the Holder of the
Note.
A-2
All
payments of principal and interest on this Note due to the Holder hereof shall
be made in U.S. dollars, in immediately available funds, by intra-institution
book entry transfer to the Holder’s designated sub-account in the trust account
maintained by the Company at Wells Fargo Bank, National Association, or such
alternate account of the Holder designated by the Trustee in accordance with the
Indenture.
All U.S.
dollar amounts used in or resulting from the calculation of amounts due in
respect of this Note shall be rounded to the nearest cent (with one-half cent
being rounded upward).
This Note
is one of a duly authorized series of a class of special limited obligations of
the Company referred to as Borrower Payment Dependent Notes (hereinafter called
the “Securities”) all issued or to be issued under and pursuant to an Indenture
dated as of June 15, 2009 (hereinafter called the “Indenture”), duly
executed and delivered by the Company and Wells Fargo Bank, National
Association, as trustee (hereinafter called the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, duties and immunities thereunder of the Trustee and
the rights thereunder of the holders of the Securities. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”), as in effect
on the date of the Indenture. The Securities are subject to, and
qualified by, all such terms, certain of which are summarized hereon, and
Holders are referred to the Indenture and the TIA for a statement of such
terms. As provided in the Indenture, the Securities may be issued in
one or more separate series, which different series may be issued in various
aggregate principal amounts, mature at different times, bear interest at
different rates, be subject to different covenants and events of default, and
otherwise vary as provided or permitted in the Indenture.
If an
Event of Default described in Section 5.1(3) or (4) of the
Indenture occurs and is continuing, the unpaid stated principal amount hereof
will become and be immediately due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture.
The
Indenture provides that the Company or a third-party servicer shall use
commercially reasonable efforts to service and collect the Corresponding
Borrower Loan in good faith, accurately and in accordance with industry
standards customary for servicing loans such as the Borrower Loans, and may in
applying that standard amend or waive any term of such Borrower Loan, or in the
case of a Borrower Loan that is more than 120 days delinquent, write off
and cancel such Borrower Loan without the consent of any Holder of any
Securities of the series corresponding to such Borrower Loan. The Indenture
contains provisions permitting (subject to the servicing
standard) the Company and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of each series
of Securities affected thereby, at the time Outstanding, evidenced as provided
in the Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any indenture supplemental thereto or modifying in any manner the rights of
the holders of this Note; provided, however, that no such
supplemental indenture shall (1) change the Stated Maturity of the
principal of, or any installment of principal or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon that would
be due and payable upon a declaration of acceleration of maturity thereof or
change the place of payment where, or change the coin or currency in which, any
installment of principal and interest on any such Security is payable or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof, (2) reduce the percentage in principal amount
of the Outstanding Securities, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of the Indenture
or certain defaults thereunder and their consequences) with respect to the
Securities, or (3) modify any of the provisions of Section 8.2,
Section 5.4 (clauses (a) and (b)) or Section 5.7 of the
Indenture, except to increase the percentage of Outstanding Securities required
for such actions to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Securities of all affected series at the time outstanding, on behalf of the
holders of all the Securities of such series, to waive, insofar as those series
are concerned, compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future holders and owners of this Note and any Notes which
may be issued upon
A-3
the
registration of transfer hereof or, irrespective of whether or not any notation
thereof is made upon this Note or other such Notes.
This Note
is not entitled to any sinking fund. This Note is not redeemable at
the option of the Holder. The Company shall redeem all of the
Outstanding Notes of the series of which this Note forms a part for the
remaining unpaid principal balance of such Note if: (1) the
Corresponding Borrower Loan has been obtained as a result of verifiable identity
theft on the part of the purported borrower member and a material default under
the Note occurs; (2) a material default under the Prosper Borrower Loan has
occurred and (i) a Prosper score different from the score by the Company
for the Prosper Borrower Loan listing at issue was inserted in that Prosper
Borrower Loan listing, or (ii) the Company incorrectly applied its formula
to determine the Prosper score, resulting in a Prosper Rating different from the
Prosper Rating that should have appeared in the Prosper Borrower Loan listing;
or (3) the Company materially breaches its representations and warranties
in the lender member registration agreement pertaining to the
Notes. The Company may, in its reasonable discretion, require proof
of the identity theft, such as a copy of a police report filed by the person
whose identity was wrongfully used to obtain the fraudulently-induced
Corresponding Borrower Loan, an identity theft affidavit or a bank verification
letter (or all of the above) in order to determine that verifiable identity
theft has occurred. The Company shall not be required to repurchase a Note until
such Note is at least 120 days past-due, provided, however, that the Company may
in its sole discretion elect to repurchase a Note at an earlier
time.
The Notes
are in registered form without coupons in denominations of $0.01 to
$25,000. The Notes may not be transferred and the transfer of Notes
shall not be registered as provided in the Indenture unless such transfer is
effected on a trading system that is recognized by the Company. Upon
due presentment for registration of transfer of this Note at the office or
agency of the Company in San Francisco, California, a new Note or Notes in
authorized denominations in Dollars for an equal aggregate principal amount and
like interest rate and maturity will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for (1) any stamp tax or other governmental charge imposed in
connection therewith and (2) any transfer charges associated with the
Company’s trading platform as described on its website at
www.prosper.com.
The
Company, the Trustee, and any paying agent may deem and treat the registered
Holder hereof as the absolute owner of this Note at the Holder’s address as it
appears on the register books of the Company as kept by the Company or duly
authorized agent of the Company (whether or not this Note shall be overdue), for
the purpose of receiving payment of or on account hereof and for all other
purposes, and neither the Company nor the Trustee nor any paying agent shall be
affected by any notice to the contrary. All payments made to or upon
the order of such registered Holder shall, to the extent of the sum or sums
paid, effectively satisfy and discharge liability for moneys payable on this
Note.
No
recourse under or upon any obligation, covenant or agreement contained in the
Indenture or any indenture supplemental thereto or in any Note, or because of
any indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future shareholder, officer or director, as such,
of the Company, either directly or through the Company, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or penalty or otherwise, all such personal liability of every such incorporator,
shareholder, officer and director, as such, being expressly waived and released
by the acceptance hereof and as a condition of and as part of the consideration
for the issuance of this Note.
Unless
otherwise defined herein, terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture. To the extent that provisions contained in this Note are
inconsistent with the provisions set forth in the Indenture, the provisions
contained herein will apply.
This Note
shall be governed by and construed in accordance with the laws of the State of
New York without regard to any principle of conflict of laws that would require
or permit the application of the laws of any other
jurisdiction.
A-4
This Note
shall not be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by an authorized officer of the
Company or its duly authorized agent under the Indenture referred to
above.
IN WITNESS WHEREOF, Prosper
Marketplace, Inc. has caused this instrument to be signed by its duly
authorized officers.
Dated:
PROSPER
MARKETPLACE, INC.
By:
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
Dated:
This
is one of the Securities of the series of Securities designated therein
referred to in the within-mentioned Indenture.
PROSPER
MARKETPLACE, INC.
as
Authenticating Agent
By:
Name:
Title:
A-5
Dates Referenced Herein and Documents Incorporated by Reference