CONFIDENTIAL — PREPARED BY CALDERWOOD & HARKNESS LLP — MATTER NO. 1020-00003
INDENTURE
Draft v.6
Dated as of June 15, 2022
between
GREENFIELD AGRICULTURAL PARTNERS LLC
an Iowa limited liability company
as Issuer
and
HEARTLAND TRUST COMPANY, NATIONAL ASSOCIATION
a national banking association organized under the laws of the United States
as Trustee
________________________________________
$30,000,000 Aggregate Principal Amount
Senior Unsecured Notes due June 30, 2027
________________________________________
CUSIP: 39572L AA 3 (reserved) ISIN: US39572LAA35 (reserved)
DRAFT — SUBJECT TO REVISION — NOT FOR EXECUTION
TABLE OF CONTENTS
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INDENTURE
This INDENTURE (as amended or supplemented from time to time, this "Indenture"), dated as of June 15, 2022, is entered into between GREENFIELD AGRICULTURAL PARTNERS LLC, an Iowa limited liability company (the "Issuer" or the "Company"), and HEARTLAND TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States (the "Trustee").
RECITALS
WHEREAS, the Issuer is duly organized and existing as a limited liability company under the laws of the State of Iowa, as evidenced by Iowa Secretary of State File No. 723841, with an employer identification number of 47-3918206, and maintains its principal executive offices at 1420 Prairie Ridge Boulevard, Suite 300, Des Moines, Iowa 50309;
WHEREAS, the Issuer's Board of Managers has duly authorized the issuance by the Issuer of its Senior Unsecured Notes due June 30, 2027 (the "Notes") in an aggregate principal amount not to exceed Thirty Million Dollars ($30,000,000) at a fixed rate of interest not to exceed 10.250% per annum, pursuant to resolutions adopted at a duly convened meeting of the Board of Managers on May 20, 2022, and as reflected in the written consent of the Board of Managers dated June 3, 2022;
WHEREAS, the Notes are being offered and sold in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and are eligible for resale pursuant to Rule 144A thereunder to qualified institutional buyers ("QIBs") as defined in Rule 144A;
WHEREAS, the Issuer desires to provide for the issuance of the Notes and to set forth the terms and conditions thereof, and in connection therewith has requested Heartland Trust Company, National Association, to act as Trustee under this Indenture;
WHEREAS, Heartland Trust Company, National Association, with its principal corporate trust office located at 100 South Wacker Drive, Suite 2600, Chicago, Illinois 60606, has agreed to accept the trust created hereby and to act as Trustee hereunder upon the terms and conditions set forth in this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid and binding agreement of the Issuer and the Trustee, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity, have been done;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 — DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 — Definitions
The following terms shall have the meanings set forth below for all purposes of this Indenture. Unless the context otherwise requires, any term used herein in the singular shall include the plural, and any term used in the plural shall include the singular.
"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by, or under common control with such specified Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, the term "Affiliate" shall specifically include (i) Tallgrass Capital Holdings LP, a Delaware limited partnership, (ii) Tallgrass Capital GP LLC, a Delaware limited liability company serving as the general partner of Tallgrass Capital Holdings LP, and (iii) their respective subsidiaries, controlled entities, portfolio companies, general and limited partners, members, managers, directors, and officers.
"Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of DTC that apply to such transfer or exchange at the relevant time.
"Asset Sale" means any sale, lease, transfer, issuance, conveyance, or other disposition (including by way of merger, consolidation, or similar transaction) by the Issuer or any subsidiary of the Issuer, in one transaction or a series of related transactions, of (i) any membership interests or other equity interests in any subsidiary of the Issuer (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or a subsidiary) or (ii) any other property or assets of the Issuer or any subsidiary of the Issuer outside of the ordinary course of business of the Issuer or such subsidiary.
"Board of Managers" means the board of managers, or any equivalent governing body, of the Issuer, as constituted from time to time under the Issuer's operating agreement, as the same may be amended, restated, or otherwise modified.
"Business Day" means any day that is not (i) a Saturday, (ii) a Sunday, or (iii) a day on which banking institutions in New York, New York or Des Moines, Iowa are authorized or required by law, regulation, or executive order to close.
"Capital Stock" means, with respect to any Person, (i) in the case of a corporation, corporate stock or shares, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights, or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership, partnership interests (whether general or limited), (iv) in the case of a limited liability company, membership interests, limited liability company interests, or units, and (v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. For purposes of this Indenture, Capital Stock of the Issuer means the membership interests, units, or other equity equivalents of the Issuer.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof), having maturities of not more than twelve months from the date of acquisition, (iii) certificates of deposit, time deposits, and eurodollar time deposits with maturities of twelve months or less from the date of acquisition, bankers' acceptances with maturities not exceeding twelve months, and overnight bank deposits, in each case with any lender party to the Existing Credit Facility or with any commercial bank having capital and surplus in excess of $500,000,000, (iv) repurchase obligations with a term of not more than thirty days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above, (v) commercial paper having one of the two highest ratings obtainable from Pinnacle Ratings Group, Inc. or its equivalent and, in each case, maturing within twelve months after the date of acquisition, and (vi) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (v) of this definition.
"Change of Control" has the meaning set forth in Section 4.14(a) of this Indenture.
"Change of Control Offer" has the meaning set forth in Section 4.14(b) of this Indenture.
"Change of Control Payment Date" has the meaning set forth in Section 4.14(b) of this Indenture.
"Closing Date" means the date on which the Notes are originally issued and authenticated under this Indenture, which is targeted to be June 30, 2022.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated and rulings issued thereunder.
"Company" or "Issuer" means Greenfield Agricultural Partners LLC, an Iowa limited liability company, and any successor thereto pursuant to Article 5 of this Indenture.
"Consolidated EBITDA" means, with respect to the Issuer and its subsidiaries on a consolidated basis, for any period, Consolidated Net Income for such period, plus (without duplication) to the extent deducted (and not added back) in computing Consolidated Net Income for such period: (i) consolidated interest expense (including amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with capital lease obligations, commissions, discounts, and other fees and charges owed with respect to letters of credit and bankers' acceptance financing), (ii) income tax expense (including any federal, state, local, and foreign income taxes), (iii) depreciation expense, (iv) amortization expense, and (v) all other non-cash charges (excluding any non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash charge that was paid in a prior period), minus (without duplication) all non-cash items of income increasing Consolidated Net Income for such period, in each case determined on a consolidated basis in accordance with GAAP and calculated on a trailing four-quarter basis. For purposes of reference and context, the Issuer's Consolidated EBITDA for the fiscal year ended December 31, 2021, was approximately $27,600,000 as reflected in the Issuer's audited financial statements for such period.
"Consolidated Net Income" means, with respect to the Issuer and its subsidiaries on a consolidated basis, for any period, the net income (or loss) of the Issuer and its subsidiaries for such period as determined in accordance with GAAP on a consolidated basis.
"Consolidated Net Tangible Assets" means the total amount of all assets of the Issuer and its subsidiaries on a consolidated basis (less applicable reserves and other properly deductible items), after deducting therefrom (i) all current liabilities of the Issuer and its subsidiaries on a consolidated basis (excluding any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time more than twelve months after the time as of which the amount thereof is being computed) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount, and expense and other like intangible assets of the Issuer and its subsidiaries on a consolidated basis, all as set forth on the most recent consolidated balance sheet of the Issuer and computed in accordance with GAAP.
"Consolidated Total Indebtedness" means, as of any date of determination, the aggregate amount of all Indebtedness of the Issuer and its subsidiaries on a consolidated basis outstanding as of such date, determined in accordance with GAAP.
"Default" means any event that is, or with the giving of notice or the passage of time, or both, would become, an Event of Default.
"DTC" means The Depository Trust Company, a New York corporation, its nominees, and their respective successors and assigns, or such other depository institution hereinafter appointed.
"Event of Default" has the meaning set forth in Section 6.01 of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
"Excess Proceeds" has the meaning set forth in Section 4.13(c) of this Indenture.
"Existing Credit Facility" means the senior secured revolving credit facility of the Issuer with Meridian Commercial Bank, N.A., as administrative agent, and the lenders from time to time party thereto, in an aggregate committed amount of $40,000,000, bearing interest at a rate per annum equal to the Secured Overnight Financing Rate ("SOFR") plus 325 basis points, maturing on August 15, 2024, as such facility may be amended, restated, supplemented, modified, extended, renewed, refunded, replaced, restructured, refinanced, repaid, increased, or otherwise changed from time to time, whether by the same or any other agent, lender, or group of lenders, and whether provided under the same or any other credit or loan agreement. As of March 31, 2022, the outstanding drawn balance under the Existing Credit Facility was approximately $18,000,000.
"GAAP" means generally accepted accounting principles as in effect in the United States from time to time, applied on a consistent basis.
"Global Note" means a Note in the form of a global note substantially in the form set forth in Exhibit A hereto, deposited with or on behalf of DTC and registered in the name of DTC or its nominee, bearing the Global Note Legend.
"Global Note Legend" means the legend set forth in Section 2.16 of this Indenture.
"Holder" or "Noteholder" means the Person in whose name a Note is registered on the books of the Registrar.
"Indebtedness" means, with respect to any Person, without duplication: (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables and accrued expenses incurred in the ordinary course of business), (iv) all obligations of such Person under capital leases, (v) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets acquired by such Person, (vi) all obligations of such Person in respect of letters of credit, bankers' acceptances, performance bonds, surety bonds, or similar instruments, (vii) all guarantees by such Person of Indebtedness of any other Person, (viii) all obligations of such Person in respect of hedging obligations (valued at the termination value thereof), (ix) all Indebtedness of any other Person secured by a Lien on property or assets of such Person, whether or not such Indebtedness is assumed by such Person, and (x) all obligations of such Person under any earn-out, deferred purchase price, or similar arrangement arising in connection with an acquisition, to the extent such obligation would be reflected as a liability on a balance sheet prepared in accordance with GAAP.
"Indenture" means this Indenture, as amended, supplemented, restated, or otherwise modified from time to time in accordance with the terms hereof, including any supplemental indenture entered into pursuant to Article 9 hereof.
"Interest Payment Date" means each June 30 and December 30 of each year, commencing December 30, 2022; provided that if any Interest Payment Date would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be the next succeeding Business Day (and no additional interest shall accrue in respect of such delay).
"Investment Grade" means a rating of BBB- or higher by Pinnacle Ratings Group, Inc. (or its equivalent under any successor rating category of Pinnacle Ratings Group, Inc.) or the equivalent rating by any other nationally recognized statistical rating organization.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, security interest, lien (statutory or other), preference, priority, or other security agreement or charge of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction with respect to any of the foregoing.
"Maturity Date" means June 30, 2027.
"Note" or "Notes" means the Senior Unsecured Notes due 2027 issued under this Indenture, including any Additional Notes issued pursuant to Section 2.13.
"Offering Memorandum" means the Preliminary Offering Memorandum dated June 1, 2022, as supplemented by any pricing supplement or other supplemental offering materials, relating to the offering and sale of the Notes.
"Officer" means, with respect to the Issuer, the Chief Executive Officer, the Chief Financial Officer, the General Counsel, the Corporate Secretary, or any other officer or manager of the Issuer designated for such purpose by the Board of Managers by written resolution delivered to the Trustee. As of the date of this Indenture, such officers include Marcus J. Reinhart (Chief Executive Officer), Linda Shao-Perkins (Chief Financial Officer), and Douglas Evanston (General Counsel and Corporate Secretary).
"Officer's Certificate" means a certificate signed by an Officer of the Issuer and delivered to the Trustee, which certificate shall comply with the requirements set forth in Section 11.03 of this Indenture.
"Opinion of Counsel" means a written opinion of legal counsel, who may be counsel to or an employee of the Issuer (unless the context requires otherwise), that is reasonably acceptable to the Trustee and that meets the requirements set forth in Section 11.03 of this Indenture.
"Paying Agent" means Heartland Trust Company, N.A. (in its capacity as paying agent hereunder) or any successor paying agent appointed pursuant to Article 2 of this Indenture.
"Permitted Holder" means Tallgrass Capital Holdings LP, Tallgrass Capital GP LLC, and their respective Affiliates and any investment fund or vehicle managed, advised, or controlled by any of the foregoing.
"Permitted Indebtedness" has the meaning set forth in Section 4.09(b) of this Indenture.
"Permitted Liens" has the meaning set forth in Section 4.12(b) of this Indenture.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government, or any agency, instrumentality, or political subdivision thereof, or any other entity.
"Principal Amount" means the aggregate principal amount of Notes authorized and issuable under this Indenture, which shall be $30,000,000 in respect of the initial issuance, plus such additional amounts as may be issued in compliance with Section 2.13 and Section 4.09 hereof.
"Purchase Agreement" means the Purchase Agreement dated June 20, 2022, between the Issuer and Ridgeline Securities LLC, as initial purchaser, relating to the initial purchase and resale of the Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under the Securities Act.
"Record Date" means, with respect to any Interest Payment Date, the fifteenth (15th) calendar day preceding such Interest Payment Date, whether or not such day is a Business Day.
"Redemption Date" means the date fixed for redemption of any Notes pursuant to Article 3 of this Indenture.
"Redemption Price" means the price at which Notes are to be redeemed pursuant to Section 3.07 of this Indenture, including any applicable make-whole premium and accrued and unpaid interest to, but excluding, the Redemption Date.
"Refinancing Indebtedness" means Indebtedness of the Issuer or any subsidiary of the Issuer issued or incurred in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, defease, or refund, in whole or in part, any other Indebtedness of the Issuer or such subsidiary; provided that (i) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased, or refunded (plus all accrued interest thereon and the amount of all fees and expenses, including premiums, incurred in connection therewith), (ii) such Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased, or refunded, and (iii) if the Indebtedness being extended, refinanced, renewed, replaced, defeased, or refunded is subordinated in right of payment to the Notes, such Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased, or refunded.
"Registration Rights Agreement" means the Registration Rights Agreement to be entered into on the Closing Date among the Issuer, the Trustee, and Ridgeline Securities LLC, as initial purchaser, providing for, among other things, an exchange offer or, in certain circumstances, a shelf registration statement, with respect to the Notes.
"Restricted Investment" means any investment (whether by way of loan, advance, capital contribution, acquisition of Capital Stock, or otherwise) by the Issuer or any subsidiary in any Person other than (i) a wholly-owned subsidiary of the Issuer, (ii) Cash Equivalents, or (iii) receivables owing to the Issuer or a subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms.
"Restricted Payment" has the meaning set forth in Section 4.10 of this Indenture.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
"Senior Indebtedness" means all Indebtedness of the Issuer, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed, or guaranteed, except Indebtedness that is expressly subordinated in right of payment to the Notes by the terms of such Indebtedness or any agreement or instrument pursuant to which such Indebtedness was issued, incurred, assumed, or guaranteed.
"Significant Subsidiary" means any subsidiary of the Issuer that would be a "significant subsidiary" as defined in Article 1, Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date of this Indenture.
"Sponsor" means Tallgrass Capital Holdings LP, a Delaware limited partnership, and its Affiliates, which as of the date of this Indenture holds approximately 68.2% of the outstanding membership interests of the Issuer.
"Stated Maturity" means, with respect to the Notes, June 30, 2027, or with respect to any installment of interest, the date on which such installment of interest is due and payable as provided herein.
"Total Leverage Ratio" means, as of any date of determination, the ratio of (i) Consolidated Total Indebtedness as of such date to (ii) Consolidated EBITDA for the most recently ended four-quarter period for which financial statements are available, calculated on a pro forma basis to give effect to the incurrence or repayment of any Indebtedness since the beginning of such four-quarter period as if such incurrence or repayment had occurred on the first day of such period. For purposes of reference, the pro forma Total Leverage Ratio of the Issuer at the time of issuance of the Notes is approximately 1.09 to 1.00 (calculated as the sum of $30,000,000 in Notes (with the Existing Credit Facility drawn balance of $18,000,000 to be refinanced to zero at or prior to the Closing Date) divided by Consolidated EBITDA of approximately $27,600,000 for the fiscal year ended December 31, 2021).
"TIA" means the Trust Indenture Act of 1939, as amended and in effect on the date of this Indenture, except as provided in Section 1.03 of this Indenture.
"Treasury Rate" means, as of any Redemption Date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to the Stated Maturity; provided, however, that if the period from the Redemption Date to the Stated Maturity is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means Heartland Trust Company, National Association, a national banking association, in its capacity as trustee under this Indenture, until a successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter means the successor serving hereunder.
"Trust Officer" means any officer within the Corporate Trust Department (or any successor group) of the Trustee, including any vice president, assistant vice president, trust officer, assistant 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 shall also include any other officer of the Trustee designated in writing by an authorized officer of the Trustee. As of the date of this Indenture, the primary Trust Officer responsible for administration of this Indenture is Gregory Arndt, Vice President, Corporate Trust.
"U.S. Government Obligations" means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity, or other required payment of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment, by (ii) the then outstanding principal amount of such Indebtedness.
Section 1.02 — Other Definitions
Each of the following terms is defined in the Section set forth opposite such term:
Section 1.03 — Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, such 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:
(a) "Commission" means the Securities and Exchange Commission.
(b) "indenture securities" means the Notes.
(c) "indenture security holder" means a Holder.
(d) "indenture to be qualified" means this Indenture.
(e) "indenture trustee" or "institutional trustee" means the Trustee.
(f) "obligor" on the indenture securities means the Issuer.
All other terms used in this Indenture that are defined by the TIA, defined in the Securities Act by reference in the TIA, or defined in the rules and regulations of the Commission under the TIA shall have the meanings assigned to them therein. The provisions of Sections 310 through 318 of the TIA that impose duties on any Person (including the provisions automatically deemed included in an indenture under the TIA whether or not the indenture contains an express provision to such effect) are incorporated by reference in this Indenture and shall be deemed a part hereof to the same extent as if set forth herein in full, subject to any limitations or permissions provided by or pursuant to the TIA. Notwithstanding the foregoing, this Indenture need not be and is not required to be qualified under the TIA. To the extent any provision of this Indenture limits, qualifies, or conflicts with the duties imposed by Sections 310 through 317 of the TIA as incorporated herein, such incorporated provisions shall control.
Section 1.04 — Rules of Construction
Unless the context otherwise requires:
(a) a term has the meaning assigned to it in this Article 1 or elsewhere in this Indenture;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP as in effect on the date of this Indenture, applied on a consistent basis;
(c) "or" is not exclusive;
(d) "including" means "including without limitation";
(e) words in the singular include the plural, and words in the plural include the singular;
(f) references to "$" or "dollars" mean lawful currency of the United States of America;
(g) references to sections, articles, exhibits, and schedules, unless otherwise indicated, are references to sections of, articles of, exhibits to, and schedules to this Indenture;
(h) unless the context otherwise requires, any reference to an "Article," "Section," "Exhibit," or "Schedule" refers to an Article of, Section of, Exhibit to, or Schedule to, this Indenture;
(i) the words "herein," "hereof," "hereunder," and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, or other subdivision;
(j) the table of contents and headings contained in this Indenture are for convenience of reference only and shall not affect the meaning or interpretation of this Indenture; and
(k) this Indenture shall be governed by and construed in accordance with the laws of the State of New York, as more fully set forth in Section 11.06.
ARTICLE 2 — THE NOTES
Section 2.01 — Form and Dating
(a) The Notes shall be issued in fully registered form, without coupons, in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof. The Notes shall be issued initially in the form of one or more Global Notes deposited with, or on behalf of, DTC and registered in the name of Cede & Co., as DTC's nominee, or such other name as may be requested by an authorized representative of DTC. The Notes shall be substantially in the form set forth in Exhibit A hereto (the terms of which are incorporated herein by reference), with such changes and additions thereto as may be necessary or appropriate to reflect any terms established pursuant to this Indenture.
(b) Each Note shall be identified with the following CUSIP number: 39572L AA 3 and ISIN number: US39572LAA35, each of which is reserved pending issuance of the Notes.
(c) Each Note shall bear the restrictive legend set forth in Section 2.17 regarding the restrictions on transfer under Rule 144A and the Securities Act. Each Global Note shall also bear the Global Note Legend set forth in Section 2.16.
(d) The Notes may have notations, legends, or endorsements required by law, stock exchange rule, or usage, and shall bear such legends or endorsements as the Issuer or the Trustee may deem necessary or appropriate, in form satisfactory to the Issuer and the Trustee.
Section 2.02 — Execution and Authentication
(a) The Notes shall be executed on behalf of the Issuer by manual or facsimile signature of one or more Officers duly authorized by the Issuer. Such Officers shall include Marcus J. Reinhart (Chief Executive Officer), Linda Shao-Perkins (Chief Financial Officer), or Douglas Evanston (General Counsel and Corporate Secretary), or any other Officer designated by the Board of Managers and identified to the Trustee in writing. The signature of any such Officer upon the Notes may be a manual signature or a facsimile signature. Notes bearing the manual or facsimile signature of an individual who was, at the time of such execution, an Officer of the Issuer shall bind the Issuer, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes.
(b) The Trustee shall authenticate and deliver Notes for original issue in an aggregate principal amount of up to $30,000,000 upon a written order of the Issuer signed by one or more Officers. Such order shall specify the amount of Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, and the form of Notes to be issued. The aggregate principal amount of Notes outstanding at any time may not exceed $30,000,000 (exclusive of Additional Notes issued pursuant to Section 2.13), except as provided in Sections 2.07 and 2.13.
(c) Each Note shall be dated the date of its authentication. No Note shall be valid or obligatory for any purpose until such Note has been duly authenticated by the manual signature of a duly authorized officer of the Trustee. Such authentication shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. The Trustee's authentication certificate substantially in the form set forth in Exhibit A shall be the Trustee's certificate of authentication for the Notes.
Section 2.03 — Registrar and Paying Agent
(a) The Issuer hereby appoints Heartland Trust Company, N.A. as the initial Registrar and Paying Agent under this Indenture. The address of the Paying Agent for all purposes under this Indenture shall initially be 100 South Wacker Drive, Suite 2600, Chicago, Illinois 60606, Attention: Corporate Trust Department, or such other address as the Paying Agent may designate in a written notice to the Issuer and the Holders.
(b) The Issuer may change the Registrar or Paying Agent upon at least fifteen (15) days' prior written notice to the Trustee and the Holders; provided that the Issuer shall maintain a Registrar and Paying Agent at all times while the Notes are outstanding. The Trustee may act as Registrar and Paying Agent simultaneously with its duties as Trustee.
(c) The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture relating to such agent. The Issuer shall give prompt written notice to the Trustee of the name and address of any such Registrar or Paying Agent and of any change in the address of any such Registrar or Paying Agent.
Section 2.04 — Paying Agent to Hold Money in Trust
(a) The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders and the Trustee all sums held by such Paying Agent for the payment of the principal of, premium (if any), or interest on the Notes, and shall promptly notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require the Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee.
(b) Upon any such payment to the Trustee, the Paying Agent shall have no further liability for the money so delivered to the Trustee. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
Section 2.05 — Holder Lists
(a) 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 all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee, and the Trustee may rely upon, a list in such form and as of such date as the Trustee may reasonably require, at least semi-annually (not later than January 15 and July 15 of each year), of the names and addresses of all Holders.
(b) The Trustee shall make such lists available to any Holder pursuant to Section 312 of the TIA as incorporated herein by reference.
Section 2.06 — Transfer and Exchange
(a) Notes may be transferred or exchanged only in accordance with the provisions of this Article 2 and subject to the transfer restrictions set forth in Section 2.17. When Notes are presented to the Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met.
(b) No Notes may be issued in a denomination of less than $200,000 and integral multiples of $1,000 in excess thereof.
(c) No service charge shall be imposed by the Issuer, the Trustee, or the Registrar for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchange or transfer pursuant to Section 2.07, Section 2.13, Section 3.06, Section 4.13, or Section 4.14, which shall be paid by the Issuer).
(d) The Registrar shall not be required (i) to issue, register the transfer of, or exchange any Note during a period beginning at the opening of business fifteen (15) days before the day of any selection of Notes for redemption under Article 3 and ending at the close of business on the day of such selection, (ii) to register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (iii) to register the transfer of or exchange any Note between a Record Date and the next succeeding Interest Payment Date.
Section 2.07 — Replacement Notes
(a) If any mutilated Note is surrendered to the Trustee, or the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss, or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an order of the Issuer signed by one or more Officers, shall authenticate a replacement Note of like tenor, principal amount, and date (or different date if the Notes are no longer dated as of the original issue date) if the requirements of this Section 2.07 are met.
(b) If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of both the Issuer and the Trustee to protect the Issuer, the Trustee, any Paying Agent, and any Registrar from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder for their reasonable expenses in replacing a Note, including reasonable fees and expenses of counsel.
(c) Every replacement Note is an obligation of the Issuer and shall be entitled to the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 — Outstanding Notes
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee, except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected in accordance with the provisions hereof, and those described in this Section as not outstanding.
(b) If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser (as defined in Article 8 of the Uniform Commercial Code as in effect in the State of New York). If a Note has been defeased pursuant to Article 8, it ceases to be outstanding and interest on it ceases to accrue.
(c) A Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that Notes held by the Issuer or any Affiliate of the Issuer shall not be counted as outstanding for purposes of determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver, or consent.
Section 2.09 — Temporary Notes
Pending the preparation of definitive Notes, the Issuer may execute and, upon receipt of a written order of the Issuer signed by one or more Officers, the Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed, or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions, and other variations as the Officers executing such Notes may determine, as evidenced by their execution of such Notes. Temporary Notes shall be exchangeable for definitive Notes upon surrender of such temporary Notes at the office or agency of the Issuer designated for that purpose without charge. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.
Section 2.10 — Cancellation
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange, or payment, and the Trustee shall promptly cancel all Notes so surrendered. The Trustee shall also cancel any Notes surrendered for redemption or purchased pursuant to the provisions hereof. The Trustee shall not authenticate Notes in lieu of or in exchange for any Notes cancelled as provided in this Section, except as otherwise expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be destroyed by the Trustee in accordance with its customary procedures and, upon the Issuer's written request, the Trustee shall deliver a certificate of destruction to the Issuer.
Section 2.11 — Defaulted Interest
If the Issuer defaults in a payment of interest on the Notes, the Issuer shall pay the defaulted interest (plus any interest payable on the defaulted interest to the extent lawful) in any lawful manner. The Issuer may pay the defaulted interest to the Persons who are Holders on a subsequent special record date (the "Special Record Date"), which date shall be fixed by the Trustee at the direction of the Issuer. At least fifteen (15) days before the Special Record Date, the Issuer shall mail or cause to be mailed to Holders a notice that states the Special Record Date, the payment date, and the amount to be paid.
Section 2.12 — CUSIP and ISIN Numbers
The Issuer in issuing the Notes may use the following CUSIP number: 39572L AA 3 and ISIN number: US39572LAA35. The Trustee shall use such CUSIP and ISIN numbers in notices of redemption and other communications to Holders as a convenience to Holders, but no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice, and the Trustee shall have no responsibility for the selection, use, or accuracy of such numbers. In the event of any change in the CUSIP or ISIN number, the Issuer shall promptly notify the Trustee and the Holders of such change.
Section 2.13 — Issuance of Additional Notes
(a) Subject to compliance with the covenants set forth in this Indenture (including Section 4.09), the Issuer may from time to time issue additional Notes under this Indenture ("Additional Notes") in an unlimited aggregate principal amount. Any Additional Notes so issued shall be identical in all respects to the Notes originally issued hereunder (except for the issue date, the issue price, and the first Interest Payment Date, if applicable) and shall be treated as a single series with the Notes originally issued hereunder for all purposes of this Indenture, including waivers, amendments, redemptions, and offers to purchase.
(b) With respect to any Additional Notes, the Issuer shall deliver to the Trustee (i) an Officer's Certificate certifying that all conditions precedent herein provided for have been complied with and that the issuance of such Additional Notes is in compliance with the terms of this Indenture, (ii) an Opinion of Counsel that such Additional Notes have been duly authorized, executed, and delivered and constitute valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary qualifications), and (iii) a written order of the Issuer signed by one or more Officers directing the authentication and delivery of such Additional Notes.
Section 2.14 — Book-Entry Provisions for Global Notes
(a) The Global Notes shall be deposited with or on behalf of DTC and shall be registered in the name of Cede & Co., as nominee of DTC, or such other name as may be requested by an authorized representative of DTC. So long as DTC or its nominee is the registered Holder of any Global Note, DTC or such nominee shall be considered the sole Holder of the Notes represented by such Global Note for all purposes under this Indenture.
(b) Beneficial interests in the Global Notes shall be shown on, and transfers thereof shall be effected only through, records maintained by DTC and its participants in accordance with the Applicable Procedures. Except as provided in this Section 2.14, beneficial owners of interests in a Global Note shall not be considered Holders for any purpose of this Indenture and shall not be entitled to have Notes registered in their names, shall not receive or be entitled to receive physical delivery of Notes in definitive form, and shall not be considered the Holders thereof under this Indenture for any purpose.
(c) Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy, or other authorization furnished by DTC or impair, as between DTC and its participants, the operation of customary practices governing the exercise of the rights of a Holder.
(d) If (i) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for the Global Notes or if at any time DTC ceases to be a "clearing agency" registered under the Exchange Act, and a successor depositary is not appointed by the Issuer within ninety (90) days after receiving such notice, (ii) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of Notes in definitive form under this Indenture, or (iii) an Event of Default has occurred and is continuing and beneficial owners representing a majority in aggregate principal amount of the Notes request the issuance of definitive Notes, then the Issuer shall execute and the Trustee, upon receipt of a written order of the Issuer, shall authenticate and make available for delivery Notes in definitive, fully registered form, without interest coupons, in authorized denominations.
Section 2.15 — Special Transfer Provisions
(a) The following provisions shall apply with respect to the registration of any proposed transfer of a Note or any interest therein:
(i) Transfer of an Interest in a Global Note to Another Interest in the Same or a Different Global Note. Any transfer of a beneficial interest in a Global Note to a Person who takes delivery thereof in the form of a beneficial interest in the same or another Global Note shall be effected through the Applicable Procedures and shall comply with the applicable provisions of Section 2.17.
(ii) Transfer and Exchange of Interests in Global Notes for Definitive Notes. If definitive Notes are to be issued pursuant to Section 2.14(d), interests in Global Notes may be exchanged for definitive Notes upon surrender of the relevant Global Note at the office or agency of the Issuer designated for such purpose.
(iii) Transfer of Definitive Notes for Interests in Global Notes. If a Holder of a definitive Note wishes to transfer such Note for a beneficial interest in a Global Note, such transfer may be effected in accordance with the Applicable Procedures, subject to compliance with the transfer restrictions set forth in Section 2.17.
(b) In connection with any transfer or exchange of Notes or interests therein, the Registrar may require the presentation of such certifications as are required by this Indenture, including the certifications set forth in Exhibit B and Exhibit C hereto.
Section 2.16 — Global Note Legend
Each Global Note shall bear the following legend on the face thereof (the "Global Note Legend"):
"THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ('DTC'), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
Section 2.17 — Transfer Restrictions
(a) The Notes may only be transferred to Persons whom the seller reasonably believes are QIBs in transactions complying with Rule 144A, unless such transfer is made pursuant to an effective registration statement under the Securities Act or an applicable exemption from the registration requirements thereof. Each Note (other than Notes as to which the restrictions on transfer have been removed in accordance with the terms of this Indenture) shall bear the following legend (the "Rule 144A Legend"):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 'SECURITIES ACT'), AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE OFFER, SALE, PLEDGE, OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH ABOVE."
(b) The Registration Rights Agreement provides that the Issuer shall use commercially reasonable efforts to cause an exchange offer to be completed within one hundred eighty (180) days following the Closing Date, or, if such exchange offer is not available, to file a shelf registration statement with the Securities and Exchange Commission covering resales of the Notes. Upon completion of the exchange offer or the effectiveness of such shelf registration statement, Notes exchanged pursuant thereto or covered thereby shall no longer be required to bear the Rule 144A Legend.
(c) Any Holder desiring to effect a transfer of Notes shall present to the Registrar a certificate substantially in the form set forth in Exhibit B hereto, together with such other evidence as the Registrar may reasonably require to verify that such transfer is being effected in compliance with the Securities Act and applicable state securities laws.
ARTICLE 3 — REDEMPTION
Section 3.01 — Notices to Trustee
If the Issuer elects to redeem Notes pursuant to this Article 3, the Issuer shall furnish to the Trustee, at least forty-five (45) days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Trustee), an Officer's Certificate setting forth (i) the Section of this Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the aggregate principal amount of Notes to be redeemed, and (iv) the Redemption Price (or the formula by which the Redemption Price will be calculated).
Section 3.02 — Selection of Notes to Be Redeemed
(a) If fewer than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed from among the outstanding Notes not previously called for redemption (i) on a pro rata basis, (ii) by lot, or (iii) in accordance with the Applicable Procedures of DTC, as the Trustee shall determine in its sole discretion to be fair and appropriate.
(b) The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $200,000 or integral multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder shall be redeemed.
(c) The provisions of this Section 3.02 shall not apply if fewer than all the Notes are to be redeemed and the Notes are held in global form through DTC, in which case selection shall be made in accordance with the Applicable Procedures.
Section 3.03 — Notice of Redemption
(a) Not less than fifteen (15) nor more than sixty (60) days before the Redemption Date, the Issuer shall send or cause to be sent a notice of redemption to each Holder of Notes to be redeemed at such Holder's address appearing in the register maintained by the Registrar, with a copy to the Trustee. If fewer than all the Notes are to be redeemed, the notice of redemption shall identify the particular Notes (or portions thereof) to be redeemed.
(b) Each notice of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price (or, if the Redemption Price cannot be calculated as of the date of the notice, a description of the method of calculation thereof);
(iii) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed, and that, after the Redemption Date, upon surrender of such Note, a new Note in a principal amount equal to the unredeemed portion shall be issued in the name of the Holder;
(iv) the name and address of the Paying Agent;