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Exhibit 4.1
THE MONEY TREE
INC.
SERIES A VARIABLE RATE
SUBORDINATED DEBENTURES
INDENTURE
DATED AS OF ___________,
2005
U.S. BANK NATIONAL
ASSOCIATION
AS
TRUSTEE
CROSS-REFERENCE
TABLE
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Trust Indenture
Act Section
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Indenture
Section
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310(a)(1)
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7.10 |
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(a)(2)
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10 |
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(a)(3)
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N.A. |
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(a)(4)
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N.A. |
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(b)
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7.8; 7.10; 11.2 |
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(c)
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N.A. |
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311(a)
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7.11 |
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(b)
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7.11 |
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(c)
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N.A. |
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312(a)
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2.6 |
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(b)
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11.3 |
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(c)
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11.3 |
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313(a)
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7.6 |
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(b)(1)
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N.A. |
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(b)(2)
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7.6 |
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(c)
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11.2 |
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(d)
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7.6 |
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314(a)
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4.2; 11.2 |
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(b)
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N.A. |
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(c)(1)
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11.4 |
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(c)(2)
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11.4 |
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(c)(3)
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N.A. |
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(d)
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N.A. |
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(e)
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11.5 |
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(f)
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4.3 |
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315(a)
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7.1(b) |
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(b)
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7.5; 11.2 |
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(c)
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7.1(a) |
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(d)
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7.1(c) |
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(e)
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6.11 |
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316(a)(last sentence)
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2.10 |
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(a)(1)(A)
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6.5 |
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(a)(1)(B)
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6.4 |
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(a)(2)
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N.A. |
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(b)
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6.7 |
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317(a)(1)
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6.8 |
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(a)(2)
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6.9 |
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(b)
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2.5 |
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318(a)
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11.1 |
N.A. means not
applicable.
* This Cross-Reference Table
is not part of the Indenture.
i
TABLE OF
CONTENTS
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ARTICLE 1 |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
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Section 1.1.
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Definitions
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1 |
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Section 1.2.
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Other Definitions
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2 |
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Section 1.3.
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Incorporation by Reference of
TIA
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3 |
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Section 1.4.
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Rules of Construction
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3 |
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ARTICLE 2 |
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THE DEBENTURES |
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Section 2.1.
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Form and Dating
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3 |
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Section 2.2.
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Terms
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4 |
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Section 2.3.
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Execution
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4 |
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Section 2.4.
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Registrar and Paying Agent
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4 |
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Section 2.5.
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Paying Agent to Hold Money in
Trust
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4 |
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Section 2.6.
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Certificateholder Lists
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5 |
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Section 2.7.
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Transfer and Exchange
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5 |
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Section 2.8.
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Replacement Debentures
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5 |
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Section 2.9.
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Outstanding Debentures
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6 |
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Section 2.10.
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Treasury Debentures
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6 |
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Section 2.11.
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Temporary Debentures
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6 |
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Section 2.12.
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Cancellation
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6 |
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Section 2.13.
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Defaulted Interest
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6 |
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ARTICLE 3 |
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REDEMPTION |
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Section 3.1.
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Applicability of Article
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7 |
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Section 3.2.
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Notices to Trustee
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7 |
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Section 3.3.
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Selection of Debentures to be
Redeemed
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7 |
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Section 3.4.
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Notice of Redemption
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7 |
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Section 3.5.
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Effect of Notice of
Redemption
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8 |
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Section 3.6.
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Deposit of Redemption Price
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8 |
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Section 3.7.
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Debentures Redeemed in Part
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8 |
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Section 3.8
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Redemption Option Upon Death of
Holder
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8 |
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Section 3.9.
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Redemption Option at Request of
Holder
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9 |
ii
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ARTICLE 4 |
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COVENANTS |
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Section 4.1.
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Payment of Debentures
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9 |
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Section 4.2.
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SEC Reports
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9 |
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Section 4.3.
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Compliance Certificate
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10 |
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Section 4.4.
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Usury Laws
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10 |
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Section 4.5.
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Money for Debenture Payments to be Held
in Trust
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10 |
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Section 4.6.
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Continued Existence
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11 |
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ARTICLE 5 |
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SUCCESSORS |
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Section 5.1.
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When Company May Merge, Etc
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11 |
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ARTICLE 6 |
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DEFAULTS AND REMEDIES |
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Section 6.1.
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Events of Default
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11 |
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Section 6.2.
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Acceleration
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13 |
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Section 6.3.
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Other Remedies
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13 |
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Section 6.4.
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Waiver of Past Defaults
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13 |
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Section 6.5.
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Control by Majority
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13 |
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Section 6.6.
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Limitation on Suits
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13 |
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Section 6.7.
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Rights of Holders to Receive
Payment
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14 |
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Section 6.8.
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Collection Suit by Trustee
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14 |
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Section 6.9.
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Trustee May File Proofs of
Claim
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14 |
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Section 6.10.
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Priorities
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14 |
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Section 6.11.
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Undertaking for Costs
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15 |
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ARTICLE 7 |
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TRUSTEE |
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Section 7.1.
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Duties of Trustee
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15 |
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Section 7.2.
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Rights of Trustee
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16 |
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Section 7.3.
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Individual Rights of Trustee
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16 |
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Section 7.4.
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Trustee’s Disclaimer
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17 |
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Section 7.5.
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Notice of Defaults
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17 |
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Section 7.6.
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Reports by Trustee to Holders
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17 |
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Section 7.7.
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Compensation and Indemnity
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17 |
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Section 7.8.
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Replacement of Trustee
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18 |
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Section 7.9.
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Successor Trustee by Merger,
Etc
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19 |
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Section 7.10.
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Eligibility; Disqualification
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19 |
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Section 7.11.
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Preferential Collection of Claims
Against Company
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19 |
iii
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ARTICLE 8 |
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DISCHARGE OF INDENTURE; DEFEASANCE |
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Section 8.1.
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Termination of Company’s
Obligations
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19 |
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Section 8.2.
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Legal Defeasance and Covenant
Defeasance
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20 |
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Section 8.3.
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Conditions to Legal Defeasance or
Covenant Defeasance
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21 |
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Section 8.4.
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Application of Trust Money
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23 |
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Section 8.5.
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Repayment to the Company
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23 |
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ARTICLE 9 |
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AMENDMENTS |
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Section 9.1.
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Without Consent of Holders
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23 |
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Section 9.2.
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With Consent of Holders
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24 |
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Section 9.3.
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Compliance with Trust Indenture
Act
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24 |
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Section 9.4.
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Revocation and Effect of
Consents
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24 |
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Section 9.5.
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Notation on or Exchange of
Debentures
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25 |
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Section 9.6.
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Trustee Protected
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25 |
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ARTICLE 10 |
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SUBORDINATION |
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Section 10.1.
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Agreement to Subordinate
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25 |
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Section 10.2.
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Certain Definitions
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25 |
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Section 10.3.
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Liquidation; Dissolution;
Bankruptcy
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26 |
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Section 10.4.
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Default on Senior Debt
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26 |
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Section 10.5.
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Acceleration of Debentures
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27 |
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Section 10.6.
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When Distribution Must Be Paid
Over
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27 |
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Section 10.7.
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Notice by Company
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27 |
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Section 10.8.
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Subrogation
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27 |
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Section 10.9.
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Relative Rights
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28 |
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Section 10.10.
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Subordination may not be Impaired by
Company
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28 |
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Section 10.11.
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Distribution or Notice to
Representative
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28 |
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Section 10.12.
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Rights of Trustee and Paying
Agent
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28 |
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Section 10.13.
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Trust Moneys Not Subordinated
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28 |
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Section 10.14.
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Trustee Not Fiduciary for Holders of
Senior Debt
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29 |
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ARTICLE 11 |
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MISCELLANEOUS |
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Section 11.1.
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TIA Controls
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29 |
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Section 11.2.
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Notices
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29 |
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Section 11.3.
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Communication by Holders With Other
Holders
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29 |
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Section 11.4.
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Certificate and Opinion as to Conditions
Precedent
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30 |
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Section 11.5.
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Statements Required in Certificate or
Opinion
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30 |
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Section 11.6.
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Rules by Trustee and Agents
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30 |
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Section 11.7.
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Legal Holidays
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30 |
iv
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Section 11.8.
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No Recourse Against Others
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31 |
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Section 11.9.
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Duplicate Originals
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31 |
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Section 11.10.
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Variable Provisions
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31 |
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Section 11.11.
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Governing Law
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31 |
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Section 11.12.
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No Adverse Interpretation of Other
Agreements
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31 |
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Section 11.13.
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Successors
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31 |
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Section 11.14.
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Severability
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32 |
v
INDENTURE dated as of
, 2005, between The Money Tree Inc., a Georgia corporation
(“Company”), and U.S. Bank National Association, a
national banking association (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s Series A Variable
Rate Subordinated Debentures:
ARTICLE 1
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.1. Definitions
.
“ Affiliate
” means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company.
“ Agent ”
means any Registrar, Paying Agent or co-registrar.
“ Board of
Directors ” means the Board of Directors of the Company
or any authorized committee of the Board.
“ Company
” means the party named as such above until a successor
replaces it and thereafter means the successor or any other obligor
with respect to the Debentures.
“ Company Order
” means an order signed in the name of the Company by its
President or a Vice President, and by its Treasurer or Secretary,
and delivered to the Trustee.
“ Date of Issue
” means the date that the Company receives proper
documentation and the funds for the purchase of a Debenture if such
funds are received prior to 3:00 p.m. on a business day or the next
business day if the Company receives such funds on a non-business
day or after 3:00 p.m. on a business day. For this purpose, the
Company’s business days will be deemed to be Monday through
Friday, except on Georgia legal holidays.
“ Debentures
” means the Series A Variable Rate Subordinated Debentures
described herein issued under this Indenture.
“ Default
” means any event which is, or after notice or passage of
time would be, an Event of Default.
“ Demand Notes
” means the Subordinated Demand Notes issued by the Company
under a separate Indenture ranking pari passu with the Debentures
issued hereunder.
“ Holder ”
or “ Certificateholder ” means a person in whose
name a Debenture is registered.
“ Indenture
” means this Indenture as amended from time to
time.
“ Officers’
Certificate ” means a certificate signed by an officer of
the Company.
“ Opinion of
Counsel ” means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
“ Person ”
means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
“ Principal
” of a debt security means the principal of the security plus
the premium, if any, on the security.
“ SEC ”
means the United States Securities and Exchange
Commission.
“ Stated
Maturity ,” when used with respect to a Debenture, means
the date specified in such Debenture as the fixed date on which the
principal of such Debenture and any accrued but unpaid interest is
due and payable.
“ Subsidiary
” means any person of which at least a majority of capital
stock having ordinary voting power for the election of directors or
other governing body of such person is owned by the Company
directly or through one or more subsidiaries.
“ TIA ”
means the Trust Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb)
as in effect on the date of execution of this Indenture.
“ Trustee
” means the party named as such above until a successor
replaces it and thereafter means the successor.
“ Trust Officer
” means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
Section 1.2. Other Definitions
.
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Term
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Defined in
Section
|
| “Additional Interest” |
|
2.2(b) |
| “Bankruptcy Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Debt” |
|
10.2 |
| “Event of Default” |
|
6.1 |
| “Legal Holiday” |
|
11.7 |
| “Officer” |
|
11.10 |
| “Representative” |
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10.2 |
| “Senior Debt” |
|
10.2 |
| “U.S. Government Obligations” |
|
8.1 |
2
Section 1.3. Incorporation by
Reference of TIA .
Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
The following TIA terms used
in this Indenture have the following meanings:
“ Indenture
Securities ” means the Debentures;
“ Indenture Security
Holder ” means a Certificateholder;
“ Indenture to be
Qualified ” means this Indenture;
“ Indenture
Trustee ” or “ Institutional Trustee ”
means the Trustee; and
“ Obligor
” on the Debentures means the Company.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to
another statute, or defined by SEC rule under the TIA have the
meanings assigned to them.
Section 1.4. Rules of
Construction .
Unless the context otherwise
requires:
| |
(1) |
a term has the meaning assigned to it; |
| |
(2) |
an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted
accounting principles in effect on the date of execution of this
Indenture; |
| |
(3) |
“ or ” is not exclusive; |
| |
(4) |
words in the singular include the plural, and in the plural
include the singular; and |
| |
(5) |
provisions apply to successive events and
transactions. |
ARTICLE 2
THE
DEBENTURES
Section 2.1. Form and Dating
.
The Debentures shall be
substantially in the form of EXHIBIT A, with such appropriate
insertions, omissions, substitutions and other variations required
or permitted by this Indenture. The Debentures may have notations,
legends or endorsements required by law, stock exchange rule or
usage.
3
Section 2.2. Terms .
| |
(a) |
Amount Unlimited; Terms. The aggregate principal amount
of Debentures which may be delivered under this Indenture is
unlimited. Debentures may be issued in one or more series. The
initial aggregate principal amount of the Debentures to be
delivered under this Indenture shall be $75,000,000. The aggregate
principal amount may be increased, without the need for approval of
any Holders or the Trustee by means of Company Order, as set forth
in Section 9.1. |
| |
(b) |
Interest. Each Debenture shall bear interest from its
Date of Issue for the applicable interest adjustment period
selected by the Holder, and for each successive interest adjustment
period thereafter, at an annual rate compounded daily, which shall
be determined at the beginning of each interest adjustment period
by the Company in its sole discretion as set forth in the
prospectus supplement most recently filed by the Company with the
SEC, or if the Company does not have an effective registration
statement on file with the SEC, as published by the Company.
Interest will be earned daily and is payable at any time at the
Holder’s request. |
| |
(c) |
Subordination. The Debentures shall be subordinated and
junior in right of payment to all Senior Debt of the Company as
provided in Article 10. |
Section 2.3. Execution
.
Two Officers, consisting of
the President or a Vice President and the Treasurer or Secretary,
shall sign the Debentures for the Company by manual or facsimile
signature.
If an Officer whose signature
is on a Debenture no longer holds that office at the time the
Debenture is delivered, the Debenture shall nevertheless be
valid.
Section 2.4. Registrar and Paying
Agent .
The Company shall maintain an
office or agency where Debentures may be presented for registration
of transfer or for exchange (“ Registrar ”) and
an office or agency where Debentures may be presented for payment
(“ Paying Agent ”). The Registrar shall keep a
register of the Debentures and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Certificateholder.
The term “ Paying Agent ” includes any
additional paying agent. The Company shall notify the Trustee of
the name and address of any agent not a party to this Indenture.
The Company or any of its subsidiaries may act as Paying Agent or
Registrar. The Company initially appoints itself as Paying Agent
and Registrar.
Section 2.5. Paying Agent to Hold
Money in Trust .
The Company shall require
each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of
Certificateholders or the Trustee all
4
money held by the Paying Agent for the
payment of principal or interest on the Debentures, and will notify
the Trustee of any failure by the Company in making any such
payment. While any such failure continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent shall have no further liability for the money. If the
Company acts as Paying Agent, it shall segregate and hold in a
separate bank account for the benefit of the Certificateholders all
money held by it as Paying Agent. The Paying Agent may charge for
its expenses in issuing a replacement interest check.
Section 2.6. Certificateholder
Lists .
The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Certificateholders.
If the Trustee is not the Registrar, the Company shall timely
furnish to the Trustee the changes in this list and will furnish an
updated list of the names and addresses of Certificateholders in
such form and as of such date and at such other times as the
Trustee may request in writing.
Section 2.7. Transfer and
Exchange .
Where Debentures are
presented to the Registrar or a co-registrar with a request to
register, transfer or to exchange them for an equal principal
amount of Debentures but of other denominations, the Registrar
shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations
of transfer and exchanges, the Company shall issue Debentures at
the Registrar’s request. The Company may charge for its
expenses in transferring or exchanging a Debenture.
The Company shall not be
required (i) to issue, transfer or exchange any Debenture during a
period beginning at the opening of business 15 days before either
(A) the day of the mailing of a notice of redemption of Debentures
selected for redemption pursuant to Section 3.3 and ending at the
close of business on the date of such redemption or (B) the date of
the maturity of that Debenture and ending on such maturity date, or
(ii) to transfer or exchange any Debenture selected for redemption
in whole or in part.
Section 2.8. Replacement
Debentures .
If the Holder of a Debenture
claims that the Debenture has been lost, destroyed or wrongfully
taken, the Company shall issue a replacement Debenture if the
Trustee’s requirements are met. If required by the Trustee or
the Company, an indemnity bond must be sufficient in the judgment
of both the Company and the Trustee to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if
a Debenture is replaced. The Trustee may waive such indemnity bond
if so instructed by the Company. The Company may charge for its
expenses in replacing a Debenture.
Every replacement Debenture
is an additional obligation of the Company.
5
Section 2.9. Outstanding
Debentures .
The Debentures outstanding at
any time are all of the Debentures delivered by the Company
pursuant to this Indenture except for those canceled by it, those
delivered to it for cancellation, and those described in this
Section as not outstanding.
If a Debenture is replaced
pursuant to Section 2.8, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced
Debenture is held by a bona fide purchaser.
If Debentures are considered
paid under Section 4.1, they cease to be outstanding and interest
on them ceases to accrue.
Section 2.10. Treasury Debentures
.
In determining whether the
Holders of the required principal amount of the Debentures have
concurred in any direction, waiver or consent, Debentures owned by
the Company or an Affiliate shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent, only
Debentures which the Trustee knows are so owned shall be so
disregarded.
Section 2.11. Temporary
Debentures .
Until definitive Debentures
are ready for delivery, the Company may prepare temporary
Debentures. Temporary Debentures shall be substantially in the form
of definitive Debentures but may have variations that the Company
considers appropriate. Without unreasonable delay, the Company
shall prepare definitive Debentures in exchange for temporary
Debentures.
Section 2.12. Cancellation
.
The Company at any time may
deliver Debentures to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Debentures
surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Debentures surrendered for
registration of transfer, exchange, payment, replacement or
cancellation and shall dispose of canceled Debentures as the
Company directs. The Company may not issue new Debentures to
replace Debentures that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.13. Defaulted Interest
.
If the Company fails to make
a payment of interest on the Debentures, it shall pay such interest
thereafter in any lawful manner. It shall pay such interest, plus
any interest payable on it, to the persons who are
Certificateholders of Debentures on a subsequent special record
date. The Company shall fix the special record date and payment
date. At least 15 days before the special record date, the Company
shall mail to Certificateholders of Debentures a notice that states
the special record date, payment date, and amount of such interest
to be paid.
6
ARTICLE 3
REDEMPTION
Section 3.1. Applicability of
Article .
Redemption of Debentures at
the election of the Company, as permitted or required by any
provision of this Indenture, shall be made in accordance with such
provision and this Article.
Section 3.2. Notices to Trustee
.
If the Company wants to
redeem the Debentures pursuant to paragraph 1 of the Debentures, it
shall notify the Trustee by Officers’ Certificate of the
redemption date and the principal amount of Debentures to be
redeemed. The Company shall give each notice provided for in this
Section at least fifty (50) days before the redemption
date.
Section 3.3. Selection of Debentures
to be Redeemed .
If fewer than all the
Debentures are to be redeemed, the Company shall select the
Debentures to be redeemed by interest adjustment period or
maturity, and so inform the Trustee by Officers’ Certificate,
subject to the remainder of this Section. If less than all of a
grouping of Debentures, as specified by Officers’
Certificate, are to be redeemed, the portion thereof selected for
redemption shall be determined ratably or by lot. If fewer than all
of such grouping of Debentures as specified by Officers’
Certificate are to be redeemed, the Trustee shall then make the
selection not more than fifty (50) days before the redemption date
from Debentures outstanding not previously called for redemption.
The Trustee may select for redemption portions of the principal of
Debentures that have denominations greater than $100. Provisions of
this Indenture that apply to Debentures called for redemption also
apply to portions of Debentures called for redemption. The Trustee
shall notify the Company promptly of the Debentures or portions of
Debentures to be called for redemption.
Section 3.4. Notice of Redemption
.
At least thirty (30) days but
not more than sixty (60) days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each
Holder of Debentures whose Debentures are to be
redeemed.
The notice shall identify the
Debentures to be redeemed and shall state:
| |
(2) |
the redemption price, which shall be equal to 100% of the
principal amount of the Debenture plus accrued interest on a daily
basis to the redemption date; |
| |
(3) |
the name and address of the Paying Agent; |
7
| |
(4) |
that Debentures called for redemption must be surrendered to
the Paying Agent to collect the redemption price; and |
| |
(5) |
that interest on Debentures called for redemption ceases to
accrue on and after the redemption date. |
At the Company’s
request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense.
Section 3.5. Effect of Notice of
Redemption .
Once notice of redemption is
mailed, Debentures called for redemption become due and payable on
the redemption date at the redemption price.
Section 3.6. Deposit of Redemption
Price .
On or before the redemption
date, the Company shall deposit with the Paying Agent, or if the
Company is acting as Paying Agent it shall deposit into a separate
bank account pursuant to Section 2.5 hereof, money sufficient to
pay the redemption price of and accrued interest on all Debentures
to be redeemed on that date.
Section 3.7. Debentures Redeemed in
Part .
Upon surrender of a Debenture
that is redeemed in part, the Company shall issue for the Holder a
new Debenture equal in principal amount to the unredeemed portion
of the Debenture surrendered.
Section 3.8. Redemption Option Upon
Death of Holder .
| |
(a) |
Subject to the provisions of Article 10 and this Article 3,
upon the death of any Holder of one or more Debentures, the Company
shall be required to redeem Debentures held by a Holder of such
Debentures at the date of such Holder’s death, as requested
in the manner, and subject to the limitations, set forth below. The
redemption price shall be equal to 100% of the principal amount of
the Debenture plus accrued interest on a daily basis to the
redemption date. Redemption of such Debentures shall be made within
30 days following the receipt by the Company or the Trustee of all
of the following: |
| |
(1) |
a written request for redemption of the Debentures signed by a
duly authorized representative of the Holder, which request shall
set forth the name of the Holder, the date of death of the Holder
and the principal amount of the Debentures to be
redeemed; |
| |
(2) |
the Debentures to be redeemed; and |
| |
(3) |
evidence satisfactory to the Trustee and the Company of the
death of such Holder and the authority of the representative to
such extent as may be required by the Trustee or
Company. |
8
| |
(b) |
The Debentures held by the Holder shall not be entitled to
redemption pursuant to this Section unless all of the following
conditions are met: |
| |
(1) |
the Debentures to be redeemed have been registered in the
Holder’s name since their Date of Issue; and |
| |
(2) |
either the Company or the Trustee has been notified in writing
of the request for redemption within 180 days after the date of the
Holder’s death. |
| |
(c) |
Authorized representatives of a Holder shall include the
following: executors, administrators or other legal representatives
of an estate; trustees of a trust; joint owners of Debentures owned
in joint tenancy or tenancy by the entirety; attorneys-in-fact; and
other persons generally recognized as having legal authority to act
on behalf of another. |
Section 3.9. Redemption Option at
Request of Holder .
At the request of the Holder,
but subject to the restrictions of Article 10 below, the Company
will redeem the Debenture at the end of any interest adjustment
period for a redemption price equal to the principal amount plus
any unpaid interest thereon to the date of redemption. Furthermore,
at the written request of the Holder delivered to the Company, the
Company may, at its option and subject to the restrictions of
Article 10 below, but shall not be required to, redeem the
Debenture during any interest adjustment period for a redemption
price equal to the principal amount plus an amount equal to the
unpaid interest thereon for the Debenture, as adjusted, at the
stated rate to the redemption date minus an amount equal to the
interest that would be payable thereon at the rate stated above for
a 90-day period beginning on the first date of the interest
adjustment period.
ARTICLE 4
COVENANTS
Section 4.1. Payment of
Debentures .
The Company shall pay the
principal of and interest on the Debentures on the dates and in the
manner provided in the Debentures. Principal and interest shall be
considered paid on the date due if the Paying Agent holds on that
date money designated for and sufficient to pay all principal and
interest then due.
The Company shall pay
interest on overdue principal at the rate borne by the Debentures,
and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
Section 4.2. SEC Reports
.
The Company shall file with
the Trustee within fifteen (15) days after it files them with the
SEC copies of the annual reports and quarterly reports and of the
information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules
and
9
regulations prescribe) for the
Debentures which the Company may be required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended. The Company also shall comply with the
other provisions of TIA Section 314(a).
Section 4.3. Compliance
Certificate .
The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of
each fiscal year of the Company, an Officers’ Certificate
stating that a review of the activities of the Company and its
subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or
her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge) and that
to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Debentures are prohibited.
See Section 11.10.
Section 4.4. Usury Laws
.
The Company will not
voluntarily claim and will actively resist any attempts to claim
the benefit of any usury laws against the Holders of the
Debentures.
Section 4.5. Money for Debenture
Payments to be Held in Trust .
Whenever the Company shall
have one or more Paying Agents, it will, on or prior to each date
for the payment of the principal of or interest on the Debentures,
deposit with a Paying Agent a sum sufficient to pay the principal
or interest so becoming due, such sum to be held in trust for the
benefit of the persons entitled to such payments; and, unless such
Paying Agent is the Trustee, the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each
Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
| |
(1) |
hold all sums held by it for the payment of the principal of or
interest on the Debentures in trust for the benefit of the persons
entitled thereto until such sums shall be paid to such persons or
otherwise disposed of as herein provided; |
| |
(2) |
give the Trustee notice of any default by the Company (or any
other obligor upon the Debentures) in the making of any payment of
principal or interest; and |
10
| |
(3) |
at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent. |
For the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, the Company may at any time pay, or direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by the Company or any
Paying Agent to the Trustee, the Company or such Paying Agent, as
the case may be, shall be released from all further liability with
respect to such money.
Section 4.6. Continued Existence
.
Subject to Article 5, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a
corporation.
ARTICLE 5
SUCCESSORS
Section 5.1. When Company May Merge,
Etc .
The Company shall not
consolidate or merge with or into, or transfer or lease all or
substantially all of its assets to, any Person unless the
corporation formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale or conveyance
shall have been made, assumes by supplemental indenture all the
obligations of the Company under the Debentures then outstanding
and this Indenture.
The Company shall deliver to
the Trustee prior to the proposed transaction an Officers’
Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
The surviving corporation
shall be the successor Company, but the predecessor Company in the
case of a transfer or lease shall not be released from the
obligation to pay the principal of and interest on the
Debentures.
ARTICLE 6
DEFAULTS AND
REMEDIES
Section 6.1. Events of Default
.
An “ Event Of
Default ” occurs if:
| |
(1) |
the Company defaults in the payment of interest on any
Debenture when the same becomes due and payable and the Default
continues for a period of thirty (30) days; |
11
| |
(2) |
the Company defaults in the payment of the principal of any
Debenture when the same becomes due and payable at maturity, upon
redemption or otherwise, and the Default continues for a period of
thirty (30) days; |
| |
(3) |
the Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Debentures or this Indenture
and the Default continues for the period and after the notice
specified below; |
| |
(4) |
the Company or any material subsidiary pursuant to or within
the meaning of any Bankruptcy Law now or hereafter in
effect: |
| |
(A) |
commences a voluntary proceeding under any such Bankruptcy
Law; |
| |
(B) |
consents to the entry of an order for relief against it in an
involuntary Bankruptcy proceeding; |
| |
(C) |
consents to the appointment of a Custodian of it or for all or
substantially all of its property; |
| |
(D) |
makes a general assignment for the benefit of its creditors;
or |
| |
(E) |
generally is unable to pay its debts as the same become
due; |
| |
(5) |
a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: |
| |
(A) |
is for relief against the Company or any material subsidiary in
an involuntary Bankruptcy proceeding; |
| |
(B) |
appoints a Custodian of the Company or any material subsidiary
or for all or substantially all of its property; or |
| |
(C) |
orders the winding up or liquidation of the Company or any
material subsidiary, and the order or decree remains unstayed and
in effect for 60 days. |
The term “
Bankruptcy Law ” means Title 11 of the United States
Code or any similar Federal or State Law for the relief of debtors.
The term “ Custodian ” means any receiver,
trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.
A Default under clause (3) is
not an Event of Default until the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Debentures
notify the Company of the Default and the Company does not cure the
Default within sixty (60) days after receipt of the notice. The
notice must specify the Default, demand that it be remedied and
state that the notice is a “ Notice of Default
.”
12
Section 6.2. Acceleration
.
If an Event of Default occurs
and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding
Debentures, by notice to the Company and the Trustee, may declare
the principal of and accrued interest on all the Debentures to be
due and payable. Upon such declaration the principal and interest
owing on the then outstanding Debentures shall be due and payable
immediately. The Holders of a majority in principal amount of the
then outstanding Debentures, by notice to the Trustee, may rescind
an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of
Default have been cured or waived, except nonpayment of principal
or interest that has become due solely because of the
acceleration.
Section 6.3. Other Remedies
.
If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal or interest on the Debentures or
to enforce the performance of any provision of the Debentures or
this Indenture.
The Trustee may maintain a
proceeding even if it does not possess any of the Debentures or
does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of Debentures in exercising any right
or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent
permitted by law.
Section 6.4. Waiver of Past
Defaults .
The Holders of a majority in
principal amount of the then outstanding Debentures, by notice to
the Trustee, may waive an existing Default or Event of Default and
its consequences except a continuing Default or Event of Default in
the payment of the principal of or interest on the
Debentures.
Section 6.5. Control by Majority
.
The Holders of a majority in
principal amount of the then outstanding Debentures may direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred
on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly
prejudicial to the rights of other Holders of the Debentures, or
would involve the Trustee in personal liability.
Section 6.6. Limitation on Suits
.
The Holder of Debentures
may
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