Solar Mosaic, Inc.
Purchase of Notes. Subject to the terms and conditions of this Agreement, we will provide you the opportunity through the Site:
The purchase price for any Notes you purchase will equal 100% of their original principal amount. The Notes will be subject to the Terms and Conditions.
When a request for financing relating to a Solar Financing (a “Financing Request”) is listed on the Site, Mosaic will keep the listing open for up to 90 days. When you commit to purchase a Note you must have sufficient funds in your funding account with Mosaic to complete the purchase. Once you make a funding commitment, it is irrevocable until the Note is issued. Alternatively, you may indicate your intent to purchase a Note without having sufficient funds in your funding account, provided that (i) your commitment will become binding only at such time as your account has sufficient funds, and (ii) before that time, Mosaic may reduce the principal that is allocated to you in order to meet demand from other investors.
To review requests for solar financings (“Solar Financings”) that Mosaic has arranged with parties seeking financing for solar projects (“Borrowers”); and
To purchase Notes with minimum denominations of $25 through the Site, with each such Note associated with, and dependent on, a Borrower’s loan payment obligations relating to a Solar Financing (“Loan Obligations”).
Terms of the Notes. The Notes shall have the terms and conditions described in the Offering Memorandum and the form of Note, which will be available for you to review on the Site. The interest rate, maturity and other terms of the corresponding Loan Obligations will be described in the Offering Memorandum, and the corresponding financing agreements between the Borrower and Mosaic will be available for review on the Site (generally with information identifying the Borrower redacted).
Your Covenants and Acknowledgments. You agree that you have no right to, and shall not, make any attempt, directly or through any third party, to take collection action with respect to any Loan Obligations. YOU UNDERSTAND AND ACKNOWLEDGE THAT BORROWERS MAY DEFAULT ON THEIR LOAN OBLIGATIONS AND THAT SUCH DEFAULTS WILL REDUCE THE AMOUNTS, IF ANY, YOU MAY RECEIVE UNDER THE TERMS OF ANY NOTES YOU HOLD ASSOCIATED WITH SUCH LOAN OBLIGATIONS. YOU FURTHER ACKNOWLEDGE THAT MOSAIC’S ENFORCEMENT OF ITS RIGHTS AND REMEDIES WITH RESPECT TO THE LOAN OBLIGATIONS DURING ANY DEFAULT MIGHT NOT RESULT IN MOSAIC RECOVERING THE FULL AMOUNT OF THE LOAN OBLIGATIONS. You and Mosaic agree that the Notes are intended to be indebtedness of Mosaic for U.S. federal income tax purposes. You agree that you will not take any position inconsistent with such treatment of the Notes for tax, accounting, or other purposes, unless required by law. You further acknowledge that the Notes will be subject to the original issue discount rules of the Internal Revenue Code of 1986, as amended, as described in the Offering Memorandum for such Notes. You acknowledge that you are prepared to bear the risk of loss of your entire purchase price for any Notes you purchase.
Enforcement and Collection of Loan Obligations. Mosaic will collect, as the lender thereon, all Loan Obligations, both before and after default, and will service all Notes. In enforcing the Loan Obligations, Mosaic may, in its discretion, utilize affiliated or unaffiliated third party loan servicers, collection agencies or other agents or contractors. With respect to Notes issued by a subsidiary of Mosaic, Mosaic will act as the subsidiary’s agent for purposes of collecting Loan Obligations and servicing Notes, unless the holders of such Notes have entered into a separate agreement with the subsidiary that supersedes this Agreement.Mosaic and any third-party servicer enforcing a Loan Obligation may, in its sole discretion and subject to the enforcement standard set forth in this Section 4, refer a Loan Obligation to a collection agency, elect to initiate legal action to collect a Loan Obligation, or sell a Loan Obligation to a third party at any time. Subject to the fees and enforcement expenses described below, any amounts received by Mosaic on Loan Obligations will be forwarded to the holders of the Notes corresponding to such Loan Obligations. Notwithstanding the foregoing, we will not pay to you any non-sufficient funds fees or collection fees we or a third-party collection agency charge, and such fees will be retained by the party receiving them as additional servicing compensation. Mosaic will pay you any late fees we receive on Loan Obligations. Any prepayments received on Loan Obligations will be paid ratably to the Note holders. Mosaic and its third-party servicers will be entitled to deduct from amounts received with respect to Loan Obligations the legal fees and other expenses that they incur in enforcing the Loan Obligations.Enforcement Standard. Mosaic will act in good faith (as defined in Article 1 of the Uniform Commercial Code) in taking action to collect the Loan Obligations, including in enforcing its security interest in the assets pledged to secure the Loan Obligations. Mosaic and any third-party servicer enforcing a Loan Obligation shall have the right, without your consent, at any time and from time to time and subject to the foregoing enforcement standard, to change the payment date, reduce the principal amount or the rate of interest or change the place and manner of making payments on a Loan Obligation, amend or waive any other term of such Loan Obligation, or charge-off any Loan Obligation that Mosaic or any third-party servicer enforcing the Loan Obligation deems uncollectible.Backup Servicing. Mosaic will use commercially reasonable efforts to maintain arrangements to provide for backup servicing in the event of any interruption of Mosaic’s operations that affects Mosaic’s ability to enforce and collect the Loan Obligations.
Mosaic Fees. While you maintain an account on the Mosaic platform, Mosaic will charge you a monthly platform fee beginning at the time you complete your first Note purchase. The fee will be based on a percentage of the total value of the unpaid principal of all Notes you own and any cash in your account, other than (i) cash deposited in your account within the last month, (ii) cash disbursed to your account within the last month as a result of payments on Notes, (iii) cash in your account totaling less than $25.00, (iv) cash that has been committed toward the purchase of Notes that have not yet been issued, (v) cash that has been committed toward the purchase of Notes the offering of which has been cancelled within the last month, and (vi) cash held in your account during any month in which there were no Notes offered on the Mosaic platform that you were eligible to purchase. The platform fee will be deducted from the cash in your account at the end of each month. If there is insufficient cash in your account at the time the fee is assessed, the unpaid portion of the fee will be deducted at such time as additional cash is deposited in or disbursed to your account.Mosaic shall also be entitled to retain the applicable collection fees.The platform fee rate and other fees will be posted on the Site. Mosaic reserves the right to change these fees at any time, provided that any such change will take effect with respect to the first month after the change is posted on the Site.
Your Financial Suitability Acknowledgments, Representations, Warranties and Covenants. At the time you commit to purchase any Note, you represent and warrant that you satisfy the minimum financial suitability standards applicable to the state in which you reside, as posted on the Site from time to time; and you covenant that you will abide by the maximum investment limits, each as set forth below or as may be set forth in the Offering Memorandum or any supplement thereto on the Site. You agree to provide any additional documentation we reasonably request, or as may be required by the securities administrators or regulators of any state, to confirm that you meet such minimum financial suitability standards and have satisfied any maximum investment limits. You understand that the Notes will not be listed on any securities exchange, that there will be no trading platform for the Notes, that any trading of Notes must be conducted in accordance with federal and applicable state securities laws and that Note purchasers should be prepared to hold the Notes they purchase until the Notes mature.
Mosaic’s Representations and Warranties. Mosaic represents and warrants to you, as of the date of this Agreement and as of any date that you commit to purchase Notes, that: (a) it is duly organized and is validly existing as a corporation in good standing under the laws of Delaware and has corporate power to enter into and perform its obligations under this Agreement; (b) this Agreement has been duly authorized, executed and delivered by Mosaic; (c) the Notes have been duly authorized and, following payment of the purchase price by you and electronic execution, authentication and delivery to you, will constitute valid and binding obligations of Mosaic or its subsidiary, as the case may be, enforceable against Mosaic or such subsidiary in accordance with their terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency or similar laws or general principles of equity; and (d) it has complied in all material respects with applicable federal, state and local laws in connection with the offer and sale of the Notes.PAYMENT ON THE NOTES, IF ANY, DEPENDS ENTIRELY ON THE RECEIPT OF PAYMENTS BY MOSAIC IN RESPECT OF THE CORRESPONDING LOAN OBLIGATIONS. NEITHER MOSAIC NOR ANY OTHER PARTY WARRANTS OR GUARANTEES IN ANY MANNER THAT YOU WILL RECEIVE ALL OR ANY PORTION OF THE PRINCIPAL OR INTEREST YOU EXPECT TO RECEIVE ON ANY NOTE OR REALIZE ANY PARTICULAR OR EXPECTED RATE OF RETURN. THE AMOUNT YOU RECEIVE ON YOUR NOTE, IF ANY, IS SPECIFICALLY RESTRICTED TO PAYMENTS MADE BY US EQUAL TO THE PAYMENTS MADE BY THE BORROWER UNDER THE LOAN OBLIGATIONS TO WHICH YOU COMMITTED, NET OF OUR SERVICING FEE ON ALL BORROWER PAYMENTS AND OUR COLLECTION FEE OR ANY ENFORCEMENT EXPENSES WE INCUR IN COLLECTING SUCH BORROWER PAYMENTS. NEITHER MOSAIC NOR ANY OTHER PARTY MAKES ANY REPRESENTATIONS AS TO A BORROWER’S ABILITY TO PAY OR ACTS AS A GUARANTOR OF ANY CORRESPONDING LOAN OBLIGATIONS.
Your Representations and Warranties. You represent and warrant to Mosaic, as of the date of this Agreement and as of any date that you commit to purchase Notes, that: (a) you have the power to enter into and perform your obligations under this Agreement; (b) this Agreement has been duly authorized, executed and delivered by you; and (c) in connection with this Agreement, you have complied in all material respects with applicable federal, state and local laws.
Prohibited Activities. You agree that you will not do any of the following in connection with any funding requests, Notes, Loan Obligations or other transactions involving or potentially involving Mosaic:
Take any action on your own to collect, or attempt to collect from any Borrower, directly or through any third party, any amount owing under any of your Notes or on any of the Loan Obligations that correspond to your Notes;
Bring a lawsuit or other legal proceeding against any Borrower or any other party on any Loan Obligations;
Contact the Borrower on any Loan Obligation corresponding to your Note;
Contact any collection agency or law firm to which any Loan Obligations corresponding to your Notes have been referred for collection; or
Violate any applicable federal, state or local laws.
No Advisory Relationship. You acknowledge and agree that the purchase and sale of the Notes pursuant to this Agreement is an arms-length transaction between you and Mosaic. In connection with the purchase and sale of the Notes, Mosaic is not acting as your agent or fiduciary. Mosaic assumes no advisory or fiduciary responsibility in your favor in connection with the Notes or the Loan Obligations corresponding to the Notes. Mosaic has not provided you with any legal, accounting, regulatory or tax advice with respects to the Notes. You have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate.
Mosaic’s Right to Verify Information and Cancel Funding. Mosaic ordinarily does not verify the information provided by Borrowers or their solar customers in connection with Financing Requests but reserves the right to do so. If Mosaic, prior to the funding of a Solar Financing, reasonably determines that a Financing Request contains materially inaccurate information (including unintended inaccuracies, inaccuracies resulting from errors by Mosaic, or inaccuracies resulting from changes in a solar customer’s income or credit profile between the date a Financing Request is posted and the date that the Solar Power Project is to be funded) or was posted illegally or in violation of any order, writ, injunction or decree of any court or governmental instrumentality, for purposes of fraud or deception, Mosaic may remove the Financing Request from the Mosaic platform and cancel, without liability, all investor purchase commitments relating to the corresponding series of Notes. In such event, Mosaic will notify you of such cancellation via email sent to the email address you have registered on the Site.
Mosaic’s Right to Modify Terms. Mosaic has the right to change any term or provision of this Agreement, the Terms and Conditions and the Site. Mosaic will give you notice of material changes to this Agreement or the Mosaic Terms and Conditions in the manner set forth in Section 18. You authorize Mosaic to correct obvious clerical errors appearing in information you provide to Mosaic, without notice to you, although Mosaic undertakes no obligation to identify or correct such errors.
Termination. Mosaic may, in its sole discretion, with or without cause, terminate this Agreement by giving you written notice. In addition, upon our reasonable determination that you committed fraud or made a material misrepresentation in connection with a Financing Request or a commitment to purchase a Note, performed any prohibited activity, or otherwise failed to abide by the terms of this Agreement or the Terms and Conditions, we may, in our sole discretion, immediately and without notice, take one or more of the following actions: (i) terminate or suspend your right to purchase Notes; or (ii) terminate this Agreement and your registration with Mosaic. Upon termination of this Agreement and your registration with Mosaic, any Note purchase commitments you have made shall be terminated. Any Notes you purchase prior to the effective date of termination shall remain in full force and effect in accordance with their terms.
Indemnification. In addition to your indemnification obligations set forth in Mosaic’s Terms and Conditions, you agree to indemnify, defend, protect and hold harmless Mosaic and its officers, directors, shareholders, employees and agents against all claims, liabilities, actions, costs, damages, losses, demands and expenses of every kind, known or unknown, contingent or otherwise, (i) resulting from any material breach of any obligation you undertake in this Agreement, or (ii) resulting from your wrongful acts, omissions and representations (and those of your employees, agents or representatives) relating to Mosaic. Your obligation to indemnify Mosaic shall survive termination of this Agreement, regardless of the reason for termination.
Limitations on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY OF THE OTHER.
Further Assurances. The parties agree to execute and deliver such further documents and information as may be reasonably required in order to effectuate the purposes of this Agreement.
Entire Agreement. Except as otherwise expressly provided herein, this Agreement represents the entire agreement between you and Mosaic regarding the subject matter hereof and supersedes all prior or contemporaneous communications, whether oral, written or electronic, between us.
Consent to Electronic Transactions and Disclosures. Because Mosaic operates principally on the Internet, you will need to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to our giving you certain disclosures electronically, either via the Site or to the email address you provide to us. By entering into this Agreement, you consent to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to your or our rights, obligations or services under this Agreement (each, a “Disclosure”). The decision to do business with us electronically is yours. This document informs you of your rights concerning Disclosures.
Electronic Communications. Any Disclosures will be provided to you electronically, either on our website or via email to the verified email address you provided. If you require paper copies of such Disclosures, you may write to us at the mailing address provided below and paper copies will be sent to you.Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate.Consenting to Do Business Electronically. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.Hardware and Software Requirements. In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions; and hardware capable of running this software.How to Contact Us Regarding Electronic Disclosures. You can contact us via email at email@example.com or by calling Investor Support at (510) 746-8602 . You may also reach us in writing at the following address: Solar Mosaic, Inc., 1212 Broadway, Suite 300, Oakland, CA 94612, Attention: Investor Support. You agree to keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered email address changes, you must notify us of the change by sending an email to firstname.lastname@example.org or by calling (510) 746-8602 . You also agree to update your registered residence address and telephone number on the web site if they change. You will print a copy of this Agreement for your records, and you agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or posted on the Site.
Notices. All notices, requests, demands, required disclosures and other communications from Mosaic to you will be transmitted to you only by email to the email address you have registered on the Site or will be posted on the Site, and shall be deemed to have been duly given and effective upon transmission or posting. You shall send all notices or other communications required to be given hereunder to Mosaic via email at email@example.com or by writing to: Solar Mosaic, Inc., 1212 Broadway Suite 300, Oakland, CA 94612, Attention: Investor Support. You may call Mosaic at (510) 746-8602 , but calling may not satisfy your obligation to provide notice hereunder or otherwise preserve your rights.
Miscellaneous. The terms of this Agreement shall survive until the termination of your registration as an investor on the Mosaic platform. The parties acknowledge that there are no third party beneficiaries of this Agreement, except for any subsidiaries of Mosaic that issue Notes on the Mosaic platform, which the parties agree shall be express third party beneficiaries hereof. You may not assign, transfer, sublicense or otherwise delegate your rights or responsibilities under this Agreement to any person without Mosaic’s prior written consent. Any such assignment, transfer, sublicense or delegation in violation of this section shall be null and void. This Agreement shall be governed by the laws of the State of California, without regard to any principle of conflict of laws that would require or permit the application of the laws of any other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver of any subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY.
Either party may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 20 (the “Arbitration Provision”), except with respect to any Claim alleging a violation of federal securities laws by Mosaic or any of its officers or directors (a “Securities Claim”). The arbitration shall be conducted in San Francisco, California. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and Mosaic (or persons claiming through or connected with Mosaic), on the other hand, relating to or arising out of this Agreement, any Note, the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of Section 21(e)) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
If we elect arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). lf you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorney’s fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
Within 30 days of a final award by the arbitrator, a party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, an opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction.
We agree not to invoke our right to arbitrate an individual Claim that you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless otherwise provided in this Agreement or consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party, or (ii) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 21(e), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 21(e) shall be determined exclusively by a court and not by the administrator or any arbitrator.
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency of any party hereto or other party; and (iii) any transfer of any loan or Note or any amounts owed on such loans or notes, to any other party. If any portion of this Arbitration Provision other than Section 21(e) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 21(e) are finally adjudicated pursuant to the last sentence of Section 21(e) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
Waiver of Jury Trial. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER AGREEMENTS RELATED THERETO.
TERMS AND CONDITIONS OF INVESTMENT
Definitions. For purposes of these Terms and Conditions:“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.“Event of Default,” with respect to a series of Notes, shall have the meaning set forth in the form of Note issued in that series.“Holder,” when used with respect to any Note, means the person in whose name a Security is registered on the Registrar’s books.“Registrar” has the meaning set forth in Section 2(a).“Subsidiary” means, with respect to any person, a corporation of which 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.
Registrar and Paying Agent.
Mosaic shall maintain, with respect to each series of Notes, an office or agency where such Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where such Notes may be presented for purchase or payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. Mosaic may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. Mosaic initially will serve as the Registrar and Paying Agent in connection with such Notes.
Mosaic shall enter into an appropriate agency agreement with respect to each series of Notes with any Registrar, Paying Agent or co-Registrar. The agreement shall implement the provisions of these Terms and Conditions that relate to such agent. Mosaic shall post the name and address of any such agent on the Site. Mosaic or any Subsidiary of Mosaic, or an Affiliate of either of them, may act as Paying Agent, Registrar or co-Registrar.
Prior to or on each due date of payments in respect of any series of Notes, Mosaic shall deposit with the Paying Agent with respect to such Notes a sum of money sufficient to make such payments when so becoming due. Mosaic shall require each Paying Agent (other than Mosaic) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders all money held by such Paying Agent for the making of payments in respect of the Notes of such series and shall notify the Holders in writing of any default by Mosaic in making any such payment. If Mosaic, a Subsidiary or an Affiliate of either of them acts as Paying Agent for a series of Notes, it shall segregate the money held by it as Paying Agent with respect to such Notes and hold it as a separate trust fund.
Outstanding Notes; Determination of Holders’ Actions.
Notes of any series “Outstanding” at any time are, as of the date of determination, all the Notes of such series theretofore authenticated by Mosaic for such series except for those cancelled by it, those delivered to it for cancellation and those described in this Section 3(a) as not outstanding. A Note does not cease to be “Outstanding” because Mosaic or an Affiliate thereof is the Holder of the Note; provided, however, that in determining whether the Holders of the requisite principal amount of outstanding Notes have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by Mosaic or any Affiliate of Mosaic shall be disregarded and deemed not to be outstanding. Notes so owned which have been pledged in good faith to a pledgee other than Mosaic or an Affiliate of Mosaic may be regarded as Outstanding if the pledgee has the right so to act with respect to such Notes. Subject to the foregoing, only Notes outstanding at the time of such determination shall be considered in any such determination.
If the Paying Agent (other than Mosaic) holds, on the final stated maturity date for a series of Notes, money sufficient to pay such Notes in full, then on and after that date such Notes shall cease to be Outstanding.
Maintenance of Office or Agency.
Mosaic will maintain for each series of Notes an office or agency where such Notes may be presented or surrendered for payment, where Notes of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon Mosaic in respect of the Notes of that series may be served. Mosaic’s office at 1212 Broadway, Suite 300, Oakland, California 94612 shall be such office or agency for all of the aforesaid purposes unless Mosaic shall maintain some other office or agency for such purposes and shall give prompt written notice to the Holders of any change in the location of such other office or agency.
Mosaic may also from time to time designate one or more other offices or agencies where the Notes 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 Mosaic of its obligation to maintain an office or agency in accordance with the requirements set forth above for Notes of any series for such purposes. Mosaic will give prompt written notice to the Holders of any such designation or rescission and of any change in the location of any such other office or agency.
Action by Holders.
Mosaic shall furnish to each Holder of Notes of any series the name, address and email address of each other such Holder:
during the continuance of any Event of Default with respect to such series;
at the request of any such Holder after Mosaic has charged off the Loan Obligation corresponding to that series if such Holder alleges a breach of this Agreement by Mosaic with respect to such Notes (a “Breach Claim”); or
at the request of any such Holder following the final maturity date of the Notes of such series if such Holder alleges a Breach Claim.
The Holders of Notes representing a majority of the aggregate principal amount of the Outstanding Notes of that series (the “Designating Holders”) shall designate a single Holder (the “Holder Representative”) to represent their interests in connection with such Notes and shall notify Mosaic of such designation in the manner set forth in Section 19 of the Investor Agreement.
The Holder Representative may, on behalf of all the Designating Holders, agree to (i) any waiver of an Event of Default or (ii) any amendment or waiver of any provision of the Notes. When a default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Event of Default or impair any consequent right.
The Holder Representative may direct the time, method and place of conducting any proceeding for any remedy available to the Designating Holders arising in connection with an Event of Default or a Breach Claim.
The Holders of a series of Notes may not pursue any remedy with respect to such Notes, other than a remedy in connection with a Securities Claim, prior to the designation of a Holder Representative with respect to such series, whether based on an Event of Default or a Breach Claim. After a Holder Representative has been designated with respect to such series, no Holder other than the Holder Representative may pursue any remedy with respect to such Notes in connection with an Event of Default or a Breach Claim, other than a remedy in connection with a Securities Claim, unless:
the Holders of at least 25% in aggregate principal amount of the Outstanding Notes of that series make a written request to the Holder Representative to pursue the remedy;
such Holder or Holders offer to the Holder Representative security or indemnity satisfactory to it against any loss, liability or expense satisfactory to the Holder Representative;
the Holder Representative does not comply with the request within 60 days after receipt of the notice, the request and the offer of security or indemnity; and
the Holders of a majority in aggregate principal amount of the Outstanding Notes of that series do not give the Holder Representative a direction inconsistent with such request during such 60-day period.